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Limitations on the Bill of Rights under the South African Constitution From Constitutional Law of South Africa

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Chapter 34
Limitations
Stu Woolman and Henk Botha
34.1 Introduction to limitation analysis
(a) Purpose
(b) Mechanics
(c) Shared constitutional interpretation, an appropriate normative framework and
hard choices
34.2 Drafting history
(a) Evolution of the clause
(b) Foreign influences
34.3 Relationship between fundamental rights analysis and limitation analysis
(a) The value-based approach and the notional approach
(b) The Constitutional Court's approach to two-stage analysis
34.4 Internal modifiers, and their relationship to rights analysis and limitations analysis
34.5 Internal limitations, and their relationship to rights analysis and limitations analysis
(a) Internal limitations and burden shifts
(b) Internal limitations and general limitations
(i) Internal limitations in FC ss 15(3)(b), 30 and 31
(ii) Internal limitations in FC ss 9, 26 and 27
(iii) Internal limitations in FC s 25 and the collapse of stage distinctions
34.6 Burden of justification
34.7 Law of general application
(a) The purpose and meaning of 'law of general application'
(b) The relationship between law of general application and the rule of law
(c) The specific features of law of general application.
(i) Law and conduct
(aa) Grant to and exercise of power by officials not constrained by
identifiable legal standards
(bb) Commission and omission
(x) Conduct carried out under the colour of law but beyond
scope of actual legal authority
(y) The failure to discharge constitutional duties
(ii) Criteria for law of general application
(aa) Parity of treatment
(bb) Non-arbitariness
(cc) Precision or clarity
(dd) Accessibility or public availability
34.8 'Reasonable and justifiable in an open and democratic society based on human dignity,
equality and freedom'
(a) Introduction
(b) Proportionality
(c) FC s 36's five factors
(i) Nature of the right
(ii) Importance of the purpose of the limitation
(iii) Nature and extent of the limitation
(iv) Relationship between the limitation and its purpose
(v) Less restrictive means
(aa) Narrowly tailored
(bb) Costs imposed
(cc) Extent of the limitation
(dd) Purpose of the limitation
(d) Balancing and proportionality
(i) Balancing as a bad metaphor
(aa) Definitions of balancing
(bb) Critiques of balancing
(w) Pluralism, incommensurability and complexity
(x) Subjectivity and arbitrariness
(y) Incrementalism and conservatism
(z) Science and silence
(ii) Balancing as a benign practice
(e) A thick(er) conception of limitations analysis
(i) Shared constitutional interpretation
(ii) Norms: 'an open and democratic society based upon human dignity,
equality and freedom'
(aa) Intersection, convergence, and conflict amongst
constitutional values
(bb) Dignity and democracy
(x) Primacy of dignity
(y) Democracy and openness
(aaa) Principle of democracy
(bbb) Principle of openness
(iii) Judicial narratives
(aa) Prince
(bb) Jordan and Khosa
34.9 The purpose of FC s 36(2)
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36. Limitations,1
(1) 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 —
(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.
1 Constitution of the Republic of South Africa Act 108 of 1996 ('FC' or 'Final Constitution'). Section 33(1), the
limitation clause, of the Constitution of the Republic of South Africa Act 200 of 1993 ('IC' or 'Interim Constitution')
read:
The rights entrenched in this Chapter may be limited by law of general application, provided that 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.
(2) Except as provided for in subsection (1) or any other provision of this Constitution, no law
shall limit any right entrenched in the Bill of Rights.
34.1 Introduction to limitation analysis*
(a) Purpose
The limitation clause has a four-fold purpose. First, it functions as a reminder that the rights
enshrined in the Final Constitution are not absolute.2 The rights
*We are deeply indebted to both Theunis Roux and Johan van der Walt for their critical and constructive
engagement with our chapter.
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may be limited where the restrictions can satisfy the test laid out in the limitation clause.3
Secondly, the limitation clause tells us that rights may only be limited where and when the stated
objective behind the restriction is designed to reinforce the values that animate this constitutional
project.4 As we shall see, the same values that inform our understanding of what constitutes a
justifiable limitation on a right — openness, democracy, dignity, equality, and freedom — also
flesh out the extension of the individual rights themselves.5 Thirdly, the test set out in the
limitation clause — with a bit of judicial amplification — allows for candid consideration of those
public goods or private interests that the challenged law sets in opposition to the rights and
freedoms enshrined in Chapter 2.6 Fourthly, the limitation clause could be said to represent an
2 See De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) & Others 2002 (6) SA 370
(CC), 2002 (12) BCLR 1285 (CC)('De Reuck') at para 89 ('I reiterate that the rights contained in the Bill of Rights
are not absolute. Rights have to be exercised with due regard and respect for the rights of others. Organised
society can only operate on the basis of rights being exercised harmoniously with the rights of others. Of course,
the rights exercised by an individual may come into conflict with the rights exercised by another, and where rights
come into conflict, a balancing process is required'); Dawood & Another v Minister of Home Affairs & Others;
Shalabi & Another v Minister of Home Affairs & Others; Thomas & Another v Minister of Home Affairs & Others
2000 (3) SA 936 (CC), 2000 (8) BCLR 837 (CC)('Dawood') at para 57 ('There is a clear limitation of the right to
dignity caused by s 25(9)(b) read with ss 26(3) and (6). Like all constitutional rights, that right is not absolute and
may be limited in appropriate cases in terms of s 36(1) of the Constitution. As stated above, there can be no
doubt that there will be circumstances when the constitutional right to dignity that protects the rights of spouses
to cohabit may justifiably be limited by refusing the spouses the right to cohabit in South Africa even pending a
decision upon an application for an immigration permit. As also stated earlier, it is for the Legislature, in the first
instance, to determine what those circumstances will be and to provide guidance to administrative officials to
exercise their discretion accordingly'); S v Manamela & Another (Director-General of Justice Intervening) 2000 (3)
SA 1 (CC), 2000 (5) BCLR 491 (CC)('Manamela')(No right is absolute, and reverse onus provisions may
constitute justifiable limitations of FC s 35 where the risk and the consequences of erroneous conviction are
outweighed by the risk and the consequences of guilty persons escaping conviction.)
3S v Mamabolo 2001 (3) SA 409 (CC), 2001 (5) BCLR 449 (CC)('Mamabolo') at para 72 ('The Constitution
makes it clear that freedom of speech is not absolute.... [S]ection 36 permits limitations which are reasonable
and justifiable in an open and democratic society based on dignity, freedom and equality.')
4 See, eg, Khumalo v Holomisa 2002 (5) SA 401 (CC), 2002 (8) BCLR 771 (CC)('Khumalo') at para 41 ('In
deciding whether the common law rule complained of by the applicants does indeed constitute an unjustifiable
limitation of section 16 of the Constitution, sight must not be lost of other constitutional values and in particular,
the value of human dignity'); Bhe & Others v Magistrate, Khayelitsha, & Others (Commission for Gender Equality
as Amicus Curiae); Shibi v Sithole & Others; South African Human Rights Commission & Another v President of
the Republic of South Africa & Another 2005 (1) SA 580 (CC), 2005 (1) BCLR 1 (CC)('Bhe') at paras 72–73 ('It
could be argued that despite its racist and sexist nature, s 23 gives recognition to customary law and
acknowledges the pluralist nature of our society. This is however not its dominant purpose or effect. Section 23
was enacted as part of a racist programme intent on entrenching division and subordination. Its effect has been
to ossify customary law. In the light of its destructive purpose and effect, it could not be justified in any open and
democratic society. It is clear from what is stated above that the serious violation by the provisions of s 23 of the
rights to equality and human dignity cannot be justified in our new constitutional order.') For further discussion of
relevant case law, see §§ 34.8(c)(ii) and (iv) infra.
5 See, eg, S v Makwanyane & Another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC)('Makwanyane') at para
104 ('In the balancing process, the relevant considerations will include the nature of the right that is limited, and
its importance to an open and democratic society based on freedom and equality; the purpose for which the right
is limited and the importance of that purpose to such a society.')
6 See Manamela (supra) at para 32 ('The Court must engage in a balancing exercise and arrive at a global
judgment on proportionality.... 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.')
For a further discussion of related case law, see § 34.8(b) infra.
attempt to finesse the 'problem' of judicial review by establishing a test that determines the extent
to which the democratically elected branches of government may craft laws that limit our
constitutionally protected rights and the extent to which an unelected judiciary may override the
general will by reference to the basic law. But the presence of FC s 36 serves as a reminder that
the counter-majoritarian dilemma is neither a paradox nor a problem, but an ineluctable
consequence of our commitment to living in a constitutional democracy. So while the language of
FC s 36 could never provide guidelines for judicial nullification so precise as to resolve this
'dilemma', the section does function as an interpretative prompt that ensures that the courts
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take the concerns of the political branches seriously enough to offer them appropriate levels of
deference.7
(b) Mechanics
7 See, eg, Technical Committee on Fundamental Rights (Interim Constitution) Third Report (28 May 1993) 9–10:
In choosing the exact formulation of such clauses, most human rights documents attempt to define with a fair
degree of precision, the guidelines which the judge should follow in fulfilling their duty in this respect. This is
particularly so as the judges are generally secure in tenure ... and so therefore less democratically accountable
than the legislature, on whose laws they sit in judgment. Such guidelines may be all the more necessary in a
legal system, moving in to judicial review of legislative action for the first time.
See also Makwanyane (supra) at para 104 quoting Reference re ss. 193 and 195 (1)(c) of the Criminal Code
(Manitoba) (1990) 48 CRR 1, 62 ('In the process regard must be had to the provisions of [IC] section 33(1), and
the underlying values of the Constitution, bearing in mind that, as a Canadian Judge has said, "the role of the
Court is not to second-guess the wisdom of policy choices made by legislators."') That there is, despite the
volumes of writing on the subject, no solution to the counter-majoritarian dilemma is a trite proposition. Suffice it
to say that every theory of interpretation offered as a 'solution' to this problem puts judicial review in a
constitutional democracy on more solid footing by alerting us to the kinds of, or styles of, arguments that may
justify a court's finding that ordinary law cannot be squared with the commitments of the basic law. But no single
theory of interpretation, nor any particular gloss on the text of FC s 36, can substitute for reasoned argument.
Every exercise of power requires justification — whether the legislature, the executive or the judiciary exercises
that power. The legitimacy of each exercise of such authority rises or falls on a combination of reasons given for
law or conduct and the outcomes that law or conduct generate. See Laurence Tribe Constitutional Choices
(1985); Stu Woolman 'Riding the Push-Me Pull-You: Constructing a Test that Reconciles the Conflicting Interests
which Animate the Limitations Clause' (1994) 10 SAJHR 60 (Any system that permits judicial review invites, by
necessity, conflict over the nature of the values said to animate the basic law); Theunis Roux 'Democracy' in S
Woolman, Theunis Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa
(2nd Edition, OS, March 2006) Chapter 10 (Constitutional democracies protect various forms of democratic
participation, and fundamental rights in large, heterogeneous nation-states are necessary conditions for these
different forms of participation.) So although no general solution exists to the problem, both the drafters of the
Final Constitution and the Constitutional Court have attempted to diminish the difficulties associated with this
dilemma by adumbrating a doctrine that makes it somewhat easier for the party seeking to justify an infringement
— especially the legislature — to do so. The Theme Committee Four Advisors to the Constitutional Assembly
noted that when courts compare the actual limitation in question with other appropriate alternative restrictions on
a right, the courts — and by implication the legislature — are not obliged to pick the least restrictive measure:
'Those restricting rights will be left with a discretion to decide on any particular measure within this [acceptable]
range .... [T]his need not be the least restrictive measure viewed in isolation.' See Theme Committee Four
Advisors Memorandum to Constitutional Assembly (Final Constitution)(14 April 1996). In Case & Curtis, Mokgoro
J concluded that the distinct roles of the judiciary and the legislature in a constitutional democracy demand that
the courts afford the legislature a 'margin of appreciation' with respect to the choice of means required to effect a
law's constitutionally permissible ends. Case & Another v Minister of Safety and Security & Others; Curtis v
Minister of Safety and Security & Others 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC)('Case & Curtis') at para
62.
As a general matter, constitutional analysis under the Bill of Rights takes place in two stages.8
First, the applicant must demonstrate that the exercise of a
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fundamental right has been impaired, infringed, or, to use the Final Constitution's term of art,
limited. This demonstration itself has several parts. To begin with, the applicant must show that
the conduct or the status for which she seeks constitutional protection is a form of conduct or
status that falls within the ambit of a particular constitutional right.9 If she is able to show that the
conduct or the
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8 See S v Zuma & Others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401, 414 (CC)('Zuma')('Fundamental rights
analysis under IC Chapter 3 'calls for a two-stage approach. First, has there been a contravention of a
guaranteed right? If so, is it justified under the limitation clause?'); Makwanyane (supra) at 707; Ferreira v Levin
NO & Others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1, 26 (CC)('Ferreira'); Mamabolo (supra) at para 1 ('The first
issue was whether the law ... limited the right to freedom of expression vouchsafed by the Constitution. The
second is whether the procedure recognised and sanctioned by our law ... fell foul of the fair trial rights
guaranteed by the Constitution.... In respect of each of the first two issues, a finding that the law does indeed
limit the fundamental rights in the respects contended for, will in turn require an enquiry whether such limitation is
nevertheless constitutionally justified.') We deal, below, with those instances in which all meaningful analysis —
of the alleged infringement and justification for the alleged infringement — occurs within the right itself and
therefore obviates the need for limitations analysis under FC s 36. For more on internal limitations, see § 34.5
infra. See, eg, First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service &
Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC), 2002 (7) BCLR
702 (CC)(Test for deprivation of property); Harksen v Lane 1998 (1) SA 300 (CC), 1997 (11) BCLR 1489 (CC)
(Test for unfair discrimination); Government of the Republic of South Africa & Others v Grootboom & Others 2001
(1) SA 46 (CC), 2000 (11) BCLR 1169 (CC)(Test for progressive realization of a socio-economic right); Khosa &
Others v Minister of Social Development & Others; Mahlaule & Others v Minister of Social Development & Others
2004 (6) SA 505 (CC), 2004 (6) BCLR 569 (CC)('Khosa) at para 83 ('There is a difficulty in applying s 36 of the
Constitution to the socio-economic rights entrenched in ss 26 and 27 of the Constitution.') We also engage those
instances in which the Court assumes, for the sake of argument, that a rights violation has occurred and then
proceeds directly to limitations analysis under FC s 36 — thus only notionally undertaking two-stage analysis.
See § 34.3(a) infra. See, eg, Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC),
2000 (10) BCLR 1051 (CC); Beinash v Ernst & Young 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC); Ferreira v
Levin NO & Others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC).
9 As the Constitutional Court has repeatedly noted, the Bill of Rights' provision on standing, FC s 38, and the
Court's doctrine of objective unconstitutionality, mean that the person before the court need not be obliged to
show that he or she is the person whose rights have been infringed or threatened with infringement. On the
objective theory of unconstitutionality, see National Coalition for Gay and Lesbian Equality & Others v Minister of
Home Affairs & Others 2000 (2) SA 1 (CC), 2000 (1) BCLR 39 (CC) at paras 28–29 ('On the objective theory of
unconstitutionality adopted by this Court a litigant who has standing may properly rely on the objective
unconstitutionality of a statute for the relief sought, even though the right unconstitutionally infringed is not that of
the litigant in question but of some other person'); Member of the Executive Council for Development Planning
and Local Government, Gauteng v Democratic Party & Others 1998 (4) SA 1157 (CC), 1998 (7) BCLR 855 (CC)
at para 64 (In re-affirming its commitment to the objective theory of unconstitutionality, the Court wrote that 'the
practice that has been urged upon this Court carries with it the distinct danger that Courts may restrict their
enquiry into the constitutionality of an Act of Parliament and concentrate on the position of a particular litigant.')
For the purposes of two-stage rights analysis, the relaxed position on standing is important. The demonstration
of a prima facie infringement of a right is not necessarily contingent upon a demonstration that the party before
the court is having her exercise of the right impaired by law or conduct. Cf Halton Cheadle 'Limitations' in H
Cheadle, D Davis & F Haysom South African Constitutional Law: The Bill of Rights (2002) 693, 696. Cheadle
asserts, with much merit, that the author of this chapter in the first edition 'confuses issues of locus standi with
the determination of scope'. But Professor Cheadle did not deign to describe the exact nature of this confusion. It
falls to the same author to clarify what Professor Cheadle did not. Cheadle would have been correct if he had
simply noted that the author's language suggests that the only person who could challenge the validity of law or
conduct was a person whose own exercise of a protected activity has been limited or impaired. FC ss 38(b)(e)
clearly grants standing to parties other than those whose 'own interests' have been impaired or threatened with
impairment. However, it would be incorrect to suggest, as Professor Cheadle does, that the rules of standing are
so relaxed that the applicant need not 'show any need of constitutional protection.' Ibid at 696. FC s 38 relaxes
the requirements for standing. It does not eliminate them. See, eg, Poswa v Member of the Executive Council
For Economic Affairs, Environment and Tourism, Eastern Cape 2001 (3) SA 582 (SCA) at para 22 (Although FC s
38 standing requirements are quite generous, the absence of any real interest in the disposition of a matter is
manifestly not 'irrelevant to the real question of whether the relief sought and granted was properly sought and
granted. The more so when a finding of constitutional invalidity would have to be confirmed by the Constitutional
Court for it to have any effect. The prospect of that Court having to devote time and attention to an issue which
no longer exists, the resolution of which will have no effect upon the order granted against the appellant and
which has not been shown to have any other practical relevance, is a singularly unattractive one. I do not believe
that the Constitution requires this Court to inflict so sterile an enquiry upon the Constitutional Court. Generosity in
status for which she seeks protection falls within the value-determined ambit of the right,10 then
she must show, in addition, that the law or the conduct she seeks to challenge impedes or limits
the exercise of the protected activity.11
If the court finds that a challenged law infringes the exercise of the
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fundamental right, the analysis may move to a second stage.12 In this second stage of analysis,
the party that would benefit from upholding the limitation will attempt to demonstrate that the
infringement of a fundamental right is justifiable.13 This second stage of analysis occurs,
generally speaking, not within the context of the fundamental right or freedom, but within the
limitation clause.14
We say may move to a second stage for two reasons. First, where the limitation does not take
place in terms of law of general application, then no opportunity arises to offer a justification in
terms of FC s 36. We discuss this threshold issue for justification below.15 Second, while all rights
admit, as an abstract matter, of the possibility of justifiable limitation, not all justification analysis
takes place in terms of FC s 36. FC s 9's inquiry into unfair discrimination, in addition to
establishing whether a prima facie violation has occurred, exhausts all meaningful inquiry into
the justification for any such violation — whether it occurs in terms of law or conduct. Similarly,
FC s 25's test for arbitrary deprivation of property consciously incorporates a sliding-scale
proportionality assessment — the sine qua non of limitations inquiries — into the rights stage of
according standing in protection of constitutional values is one thing, profligacy in that regard is another.')
Moreover, even taking into account Cheadle's quasi-notional approach to rights interpretation, the activity of the
applicant does matter when attempting to determine the scope of the right. It matters in the sense that a court or
a commentator committed to a case-by-case approach to rights interpretation often determines the scope of the
right, not in the abstract, but in terms of the particular kind of activity, engaged in by the applicant, for which
constitutional protection is sought.
10 See Matinkinca v Council of State, Ciskei 1994 (4) SA 472 (Ck), 1994 (1) BCLR 17, 34 (Ck)('[E]stablish[ing] ...
the meaning or contents ... of the relevant fundamental rights [entails] ... a value judgment as opposed to a
legalistic or positivistic approach.') However, the Constitutional Court is often reluctant to define clearly the ambit
of a right, fearing that such an approach to demarcation will bind them, in some future dispute, to an
understanding of the right that they had not anticipated and would not endorse but for the existence of some
hypothetical precedent. See, for example, Case & Curtis (supra) at para 94 ('The less we say meanwhile, in
short, the better that will be in the long run.') South African commentators are similarly reluctant to specify what
two-stage rights analysis actually requires at each stage of analysis. For example, at the same time as he
commits himself to a 'generous' approach to rights interpretation that would not unduly circumscribe a right's
protective ambit and would leave the ultimate assessment of the value of a particular form of notionally protected
activity to the limitations stage of analysis, Cheadle claims that rights analysis — first-stage analysis — ought to
take some account of the competing 'social interests' at stake in a constitutional challenge. Even if it is logically
possible to do what Cheadle suggests, he remains, as these authors read him, unclear as to the kind of analysis
that occurs at the first stage.
11 There is, of course, an important distinction to be made between law or conduct that limits expressly or
intentionally a fundamental right and law or conduct that has the unintended consequence of limiting a
fundamental right. See, eg, Irwin Toy Ltd v Quebec (Attorney General) (1989) 58 DLR (4th) 577 (Sets out
different tests for government actions which intentionally restrict the protected activity and government actions
which effectively restrict the protected activity); Secretary of State of Maryland v J H Munson Co 467 US 947
(1984)(Law — backed up by the threat of criminal sanction — may intimidate individuals into not engaging in
constitutionally protected activity: such law is said to have a 'chilling effect'.) For example, the doctrine of
overbreadth holds that laws which sweep into their proscriptive reach both constitutionally forbidden activity and
constitutionally protected activity are invalid. See, for example, South African National Defence Union v Minister
of Defence 1999 (4) SA 469 (CC), 1999 (6) BCLR 615 (CC)('SANDU'). For a discussion of the overbreadth
doctrine as articulated in SANDU, see Stu Woolman 'Freedom of Assembly' in S Woolman, T Roux, J Klaaren, A
Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, February 2005)
Chapter 43.
12 See Zuma (supra) at 414 ('Fundamental rights analysis under IC Chapter 3 'calls for a two-stage approach.
First, has there been a contravention of a guaranteed right? If so, is it justified under the limitation clause?') See
also Moise v Transitional Local Council of Greater Germiston 2001 (4) SA 491 (CC), 2001 (8) BCLR 765 (CC) at
para 19 ('It is also no longer doubted that, once a limitation has been found to exist, the burden of justification
under s 36(1) rests on the party asserting that the limitation is saved by the application of the provisions of the
section. The weighing-up exercise is ultimately concerned with the proportional assessment of competing
interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for
justification must put such material before the Court.')
13 See § 34.6 infra, on why FC s 36 places the burden of justification on the party seeking to uphold the limitation.
14 See § 34.5 infra, on the manner in which various internal limitations obviate the need for FC s 36 analysis.
15 See § 34.7 infra.
the analysis. Little, if any, space remains for additional forms of justification to be offered under
FC s 36. Finally, FC ss 26 and 27 make express provision for limitations on the socio-economic
rights found in those sections. Once again, FC s 36 would appear to afford a party seeking to
justify a limitation of a socio-economic right few, if any, additional bases for doing so. We discuss
the relationship between these rights — and, in particular, their internal limitations clauses —
and the general limitations clause at greater length below.16
(c) Shared constitutional interpretation, an appropriate normative framework and
hard choices
Let us return, briefly, to three points made above. First, the general limitation clause articulates
standards for the justification of restrictions placed by law upon the exercise of fundamental
rights. Second, these standards are expressed in rather rarefied rules that courts make concrete
through their application to
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discrete cases. Third, limitations analysis allows for open and candid consideration of competing
interests. Taken together, these three statements give expression to what the Constitutional
Court has taken to be one of the most basic principles in the Final Constitution: that every
exercise of public power derives its force from basic law and needs to be justified by reference to
the basic law,17 and that only open and public processes of rational deliberation produce
acceptable forms of justification.18
Despite the fact that these standards are produced openly and publicly, or perhaps because
of it, they are often hotly contested. Courts cannot, and do not, simply apply the requirements of
the text of the limitation clause mechanically. Courts need to explain how they understand the
demands of the text and why those demands have certain consequences for the disposition of a
case. As a result, judges themselves are subject to the demand for justification. They must be
able to explain why they have given the standards the content that they have, and why they have
applied them in a given fashion. By doing so, they signal their respect for the parties before
them, provide guidance to legislators, fellow judges and prospective litigants, and, perhaps most
importantly of all, model rational political discourse through participation in an ongoing debate
about the meaning of constitutional norms.19
These initial observations suggest that Bill of Rights litigation, rightly conceived, reflects an
ongoing dialogue about the meaning of fundamental rights and the cogency of the justifications
offered for their limitation.20 From this perspective, the court's exercise of powers of judicial
review are best understood as part of a shared project of constitutional interpretation. This
project requires that the courts, through thoroughly reasoned engagement with the constitutional
text, produce a normative framework of sufficient density to guide other political actors, organs of
state and social agents. At the same time, a doctrine of shared constitutional interpretation
encourages other actors to place their own gloss on constitutional norms and to experiment with
different policy options consistent with the basic law.
16 See § 34.5 infra.
17 Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of the Republic of South Africa
2000 (2) SA 674 (CC), 2000 (3) BCLR 241 (CC)('Pharmaceutical Manufacturers').
18 K v Minister of Safety and Security 2005 (6) SA 419 (CC), 2005 (9) BCLR 835 (CC).
19 See S v Steyn 2001 (1) SA 1146 (CC), 2001 (1) BCLR 52 (CC)(Previous findings of the Constitutional Court do
not absolve legislatures from the duty to deliberate about the constitutionality of bills before them, or to justify
limitations of fundamental rights. In Steyn, the state had not adduced evidence to support its claim that the
requirement of leave to appeal from a magistrate's court was necessary to prevent the clogging of appeal rolls
and to ensure that hopeless appeals do not waste the courts' time. Since virtually no attempt was made by the
state to justify the limitation — presumably because the Court had upheld a similar provision in relation to
appeals from High Courts — the Constitutional Court found that the state had failed to justify the measure in
question.)
20 See S v Mhlungu 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC)('Mhlungu') at para 129 (Constitutional
interpretation takes the form of 'a principled judicial dialogue, in the first place between members of this Court,
then between our Court and other courts, the legal profession, law schools, Parliament, and, indirectly, with the
public at large'.) See also Henk Botha 'Rights, Limitations, and the Impossibility of Self-government' in H Botha,
A van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2003) 13, 24-25.
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Put slightly differently, powers of judicial review are best understood not as part of a battle for
ascendancy between courts and legislatures (though they may turn into that21) or a means of
frustrating the will of the political majority, but rather as a commitment of our basic law to shared
constitutional competence. This shared competence stands, as we shall see, for five basic
propositions: (1) it supplants the notion of judicial supremacy with respect to constitutional
interpretation — all branches of government have a relatively equal stake in giving our basic law
content; (2) while courts retain the power to determine the content of any given provision, a
commitment to shared constitutional interpretation means that a court ought to limit consciously
the reach of its holding regarding the meaning of a given provision and to invite the political
branches of government or other organs of state to come up with their own alternative, but
ultimately consistent, gloss on the text; (3) shared constitutional competence married to a rather
open-ended or provisional understanding of the content of the basic law means that the
Constitutional Court's limitations analysis might be understood in terms of norm-setting
behaviour that provides guidance to other state actors without foreclosing the possibility of other
effective safeguards for rights or other useful methods for their realization; (4) a commitment to
shared interpretation ratchets down the conflict between the courts and the political branches of
government, and enables courts and all other actors to see how variations on a given
constitutional norm work in practice;22 and (5) this experimentalist — or dialogic — framework
ought to reveal 'best practices' with respect to the realization of constitutional objectives and
should offer us regular opportunities to re-think the meaning — and the constraints — of our
basic law.
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In the pages that follow, we assess the ability of the Constitutional Court to delineate clearly
rights analysis and limitations analysis, to 'balance' rights, to distinguish the core of a right from
its penumbra, and to construct a framework for limitations analysis that both (a) enables the
parties before the court to make arguments that fully ventilate the issues raised and (b)
reinforces our democratic law-making processes so that they take adequate account of the
constitutional imperative to create 'an open and democratic society' based upon the democratic
values of 'human dignity, equality and freedom'. After a critical appraisal of the Court's efforts in
this regard, we offer our own thick(er) conception of what limitations analysis ought to look like.
We offer this thicker conception not because we think that it is, in the abstract, to be preferred.
We proffer the thicker conception because we think that the Court's current approach to rights
interpretation and limitations analysis lacks analytical rigour.
That thicker conception begins with an appropriate standard of review for limitations analysis.
This standard of review takes the form of, what we called above, a doctrine of shared
21 We are grateful to Johan van der Walt for his attention to this parenthetical and his insistence that the
parenthetical may mask the fact that politics never fully disappears from such disputes. See Johan van der Walt
'A Reply to Woolman and Botha on Limitations' in M Bishop, D Brand & S Woolman (eds) Constitutional
Conversations & Proceedings of the Constitutional Law of South Africa Conference and Public Lecture Series
(2007). The original reply is available at www.chr.up.ac.za/closa.
22 See Stu Woolman 'The Selfless Constitution: Flourishing and Experimentation as the Foundations of the South
African State' (2006) 21 SA Public Law (forthcoming). See, especially, Michael Dorf & Barry Friedman 'Shared
Constitutional Interpretation' (2000) 2000 Sup Ct Rev 61. In National Education Health and Allied Workers Union
v University of Cape Town & Others, the Constitutional Court recognized that the process of interpreting the
Labour Relations Act in light of the demands of both FC s 39(2) and FC s 23(1) requires an appreciation of the
legislature's and the courts' shared responsibility for interpreting the Final Constitution. It wrote:
The LRA was enacted 'to give effect to and regulate the fundamental rights conferred by s 27 of the Constitution.'
In doing so the LRA gives content to s 23 of the Constitution and must therefore be construed and applied
consistently with that purpose. Section 3(b) of the LRA underscores this by requiring that the provisions of the
LRA must be interpreted 'in compliance with the Constitution'. Therefore the proper interpretation and application
of the LRA will raise a constitutional issue. This is because the Legislature is under an obligation to 'respect,
protect, promote and fulfil the rights in the Bill of Rights'. In many cases, constitutional rights can be honoured
effectively only if legislation is enacted. Such legislation will of course always be subject to constitutional scrutiny
to ensure that it is not inconsistent with the Constitution. Where the Legislature enacts legislation in the effort to
meet its constitutional obligations, and does so within constitutional limits, courts must give full effect to the
legislative purpose. Moreover, the proper interpretation of such legislation will ensure the protection, promotion
and fulfilment of constitutional rights and as such will be a constitutional matter. In this way, the courts and the
Legislature act in partnership to give life to constitutional rights.
2003 (3) SA 1 (CC), 2003 (2) BCLR 154 (CC) at para 14 (emphasis added).
constitutional interpretation. This doctrine mediates between the doctrine of constitutional
supremacy (a doctrine that does not shy away from the necessity of judicial law-making) and the
doctrine of separation of powers (a doctrine that often justifies the 'need' for judicial deference).
That said, the courts must still articulate a general normative framework that gives the standard
of review real purchase and which thereby guides the behaviour of political actors and citizens
alike. In the Final Constitution, and in FC s 36 in particular, the creation of a normative
framework adequate to the task of limitations analysis turns on giving adequate content to the
phrase 'open and democratic society based upon human dignity, equality and freedom'. This
task requires that we do something which the courts themselves have only gotten half-right: we
offer a description of how the value of dignity and the principle of democracy work — in tandem
— to produce, in Theunis Roux's words, a political system in which 'rights ... lie at the very heart
of South African democracy'.23 Thus, whereas the Court has privileged the value of dignity over
the other four values found in the Final Constitution's favourite catchphrase, we reassert the
priority of democracy. That reassertion does not, of course, provide an easy algorithm for
resolving conflicts between various rights, values and other pressing, constitutionally-mandated,
imperatives. Even if, as we have argued previously, and Professor Roux himself notes,
fundamental rights analysis and limitations analysis are both driven by a commitment to rights
and democracy,24 courts are still left with the
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decidedly difficult task of harmonizing constitutionally-permissible, but conflicting, ends. As we
suggest in our critique of balancing, the goods reflected in rights and in laws are often
incommensurable. Conflict resolution in the face of value incommsurability requires substantially
more than the invocation of such patmetaphors as the 'scales of justice'. In our final, highly
speculative section, we defend the use of a particular form of judicial narrative-making —
storytelling. The difference between story-telling as the preferred form of judicial narrative-
making in hard cases and the reliance on cryptic justifications for hard choices is the difference
between a good explanation and a bad explanation for the decisions that we take in terms of FC
s 36. The better the explanation, the more persuasive it will be. For those who need persuading,
the more persuasive the decision, the more legitimate it will be deemed to be. Storytelling,
properly understood, is a rhetorical form that enables judges, in Sachs J's words, to challenge
the 'hydraulic insistence on conformity to majoritarian standards'25 and to consider a range of
possible outcomes that might not otherwise have occurred to them or their public.
34.2 Drafting history
The limitation clauses of the Interim Constitution and Final Constitutions have a complex history.
The text of both clauses reflects a wide array of indigenous concerns and foreign influences. This
23 Theunis Roux 'Democracy' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS, July 2006) Chapter 10, § 10.3.
24 For a discussion of the relationship between fundamental rights analysis and limitations analysis, see § 34.3(a)
infra. See also Roux 'Democracy' (supra) at § 10.3. ('What is often forgotten when thinking about the two-stage
approach to constitutional adjudication is that both stages of the inquiry are driven by considerations of rights
and democracy: the first stage because it involves an assessment of whether the right in question has been
infringed, in a context in which FC s 7(1) provides that the 'Bill of Rights is a cornerstone of democracy' and
'affirms the democratic values of human dignity, equality and freedom'; and the second stage because limitations
analysis involves the assessment of whether the right has been reasonably and justifiably limited, measured
against the standards of 'an open and democratic society based on human dignity, equality and freedom'. He
continues: 'Of course, resolving the rights-democracy tension is not really this simple. Rights are in tension with
democracy, and it will not always be readily apparent when a decision to vindicate a right against the will of the
majority will serve the democratic values listed in FC s 7(1), and when it will not. But what FC s 7(1) decisively
does do is to put beyond question the idea that there will be at least some occasions when the vindication of a
right at the expense of majoritarian wishes will not be undemocratic.')
25 In Sachs J's view, a reasonable accommodation of conflicting interests must avoid two opposite dangers:
On the one hand, there is the temptation to proffer an over-valiant lance in defence of an under-protected group
without paying regard to the real difficulties facing law-enforcement agencies. On the other, there is the tendency
somnambulistically to sustain the existing system of administration of justice and the mind-set that goes with it,
simply because, like Everest, it is there; in the words of Burger CJ, it is necessary to be aware of "requirements
of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards."
Prince v President of the Law Society of the Cape of Good Hope 2001 (2) SA 388 (CC), 2001 (2) BCLR 133 (CC)
('Prince') at para 156.
section uses the drafting history to illuminate the meaning of various sections of the Final
Constitution's limitation clause.
(a) Evolution of the clause26
The basic form of the Interim Constitution's limitation clause did not change over the course of
the twelve reports generated by the Multi-Party Negotiating
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Forum's Technical Committee on Fundamental Rights. In its Second Report, the Committee
identified what it believed to be the primary features of a limitation clause: (a) a 'law of general
application' threshold test; (b) a reasonableness requirement; (c) a necessity requirement; (d) a
'justifiable in a free, open and democratic society' requirement; (e) a proportionality or balancing
approach; (f) a 'non-derogation from the essential content of the right' requirement; and (g)
immunization of select rights from any limitation at all. With the exception of the last
characteristic, all of these attributes appear in one form or another in the twelfth and final version
of the Interim Constitution's limitation clause.27 That said, the transformation of some of these
attributes over twelve drafts gives our exegesis of the text initial direction.
The first significant transformation was the elimination of the immunization proviso. It
appeared initially that certain rights would be expressly inviolable.28 In the seventh draft that
proviso — and the concomitant commitment to inviolability — disappeared.29 However, that
certain rights were no longer expressly inviolable did not mean that the drafters believed that
these rights were now in fact limitable. By stipulating that no restriction on a fundamental right
could negate the essential content of the right, the drafters of the Interim Constitution believed
that they had effectively immunized certain rights from limitation.30
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26 That the Technical Committee or Ad Hoc Committee notes will 'generally' be of 'some' assistance in
understanding the meaning and purpose of a constitutional provision is beyond dispute. See Makwanyane
(supra) at 679 (Chaskalson P wrote: 'Such background material can provide a context for interpretation of the
Constitution and 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.')
27 Cf Etienne Mureinik 'A Bridge to Where: Introducing the Bill of Rights' (1994) 10 SAJHR 31 (Argues that the
disappearance of a proviso that would immunize select rights from limitation in favour of an analytic structure
which would subject all rights to justifiable limitation may overemphasize symmetry at the expense of common
sense.)
28 See Technical Committee on Fundamental Rights 'Third Report' (28 May 1993) 8 ('Typical among those which
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 ('With the exception of the rights and freedoms referred to in Section 6(2), 7 (excepting the right not to be
subject to forced labour), 9 (excepting freedom of religion), 21 and 27, the rights and freedoms entrenched in this
Chapter may 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, and (b) shall
not negate the essential content of the right or freedom in question.' (Emphasis added.))
29 Technical Committee on Fundamental Rights 'Seventh Report' (29 July 1993) 10 ('The rights and freedoms
entrenched in this Chapter may be limited by a law applying generally and not solely to 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 ...')
30 Despite the excision of the immunization proviso, the drafters continued to speak of illimitable rights. See
Combined Meeting of the Ad Hoc Committee and the Technical Committee on Fundamental Rights (14
September 1993) 22 (The combined meeting generated the following list of illimitable rights: human dignity,
freedom and security of the person (in so far as it protects against torture or cruel, inhuman or degrading
treatment punishment), rights of detained, arrested and accused persons (in so far as they include the rights to
reasons for detention, to detention under dignified conditions, to be informed of the right to remain silent and not
to be compelled to make a confession if arrested, and the rights if accused to be informed of the charge, to be
presumed innocent, to remain silent during plea proceedings, not to be a compellable witness, not to be
convicted of an ex post facto crime, not to be subject to two trials for the same crime, to be tried in a language
the accused understands, and to be sentenced within a reasonable period of conviction), and the rights of
children not to be neglected, abused, or subject to child labour and to be detained in appropriate conditions. How
the text was to ensure their illimitability, in the absence of an immunization proviso, the combined meeting did not
say.)
The second significant transformation of the limitation clause involved the death and the
resurrection of the word 'necessary'. The disappearance of the term from the Fifth Report
through the Seventh Report of the Technical Committee signalled either the desire to relax the
limitation test or the belief that the term was redundant.31 The trauvaux prÅparatoires do not say.
In the Eleventh Report, the term 'necessary' reappears and comes to occupy a very different
place in the architecture of the limitation clause. The Technical Committee's notes make it clear
that the term is meant to subject limitations placed upon a particular set of enumerated rights to
a stricter form of judicial scrutiny.32
(b) Foreign influences
The undeniable debt our limitation clause owes to the Canadian Charter justified the close
attention our courts initially paid to Canadian case law.33 And despite the
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fact that our courts have never followed the fairly stringent test laid down by the Canadian
Supreme Court in R v Oakes, our jurisprudence has developed along roughly similar lines.34
Limitations analysis under the Charter and our Bill of Rights possesses such common features
as (1) a threshold requirement that a limitation must take the form of a 'law of general
application';35 (2) a threshold requirement that the objective of the impugned law be of sufficiently
31 Compare Technical Committee on Fundamental Rights 'Fifth Report' (11 June 1993) 14 (Rights and freedoms
may be limited 'to the extent (i) necessary and reasonable') with Technical Committee on Fundamental Rights
'Seventh Report' (29 July 1993) 12 (Rights and freedoms may be limited 'to the extent (i) reasonable.')
32 See Technical Committee on Fundamental Rights 'Tenth Report' (5 October 1993) 30 ('[A] law limiting a right
entrenched in sections ... shall be strictly construed for constitutional validity.' (emphasis added)). The debt to
American jurisprudence is made explicit in the draft committee notes. Indeed, the rights in s 33(1)(aa) and (bb)
had been subject to a 'strict scrutiny' provision in previous drafts of the interpretation clause — and not in the
limitation clause. However, when the drafters got wind of the potential for incoherence that would result from
having a 'reasonableness' test in a Canadian-style limitation clause and an American-style shifting of standards
of scrutiny in the interpretation clause, they excised the offending text in the interpretation clause and modified
the limitation clause accordingly. For a fuller explanation of the problems with the original formulation of the
limitation and the interpretation clauses, see Cathi Albertyn, Ronalda Murphy, Polly Halfkenny & Stu Woolman
'Critique of the Tenth Progress Report of the Technical Committee on Fundamental Rights' (September 1993)
(Memorandum on file with author.) In the Eleventh Report, the Committee explains the change as follows: 'If the
Council is of the opinion that laws limiting certain rights should be subject to a stricter form of review than laws
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 to the test
for reasonableness already required by clause 34(1)(a)(i). In this way, the further logical development of
principles conceived in Canadian jurisprudence will be possible without creating the danger of confusion with the
fundamentally different principles enunciated in US jurisprudence.' Technical Committee on Fundamental Rights
'Eleventh Report' (8 November 1993) 14-15. See also Lourens du Plessis 'A Note on Application, Interpretation,
Limitation and Suspension Clauses in South Africa's Transitional Bill of Rights' (1994) 5 Stellenbosch LR 86, 89
(Committee's attention drawn to potential incoherence of the two clauses by aforementioned memo; offending
text in interpretation clause excised and moved to limitation clause.)
33 The Interim Constitution's limitation clause, the Final Constitution's limitation clause and the Canadian
Charter's limitation clause share two important characteristics. First, they apply generally to the constitutionally
enshrined rights. (Thus, they differ from those constitutions (and conventions) that have individualized limitation
clauses within particular rights, and those constitutions (and conventions) which have no limitation clause(s) at
all.) Secondly, the language of the Final Constitution's limitation clause is strikingly similar to the language of the
Canadian Charter. Section 1 of the Canadian Charter reads, in relevant part, 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 democratic society.' The Final Constitution's limitation clause reads, in relevant part, that the 'rights of
this Chapter [on Fundamental Rights] may be limited by law of general application provided that such limitation ...
is ... reasonable ... and justifiable in an open and democratic society based upon human dignity, equality and
freedom.'
34 [1986] 1 SCR 103, 26 DLR (4th) 200, 227–28 ('Oakes'). For a more concise wording of this limitations test, see
R v Chaulk [1990] 3 SCR 1302, 62 CCC (3d) 193, 216–17. Cf Edwards Books & Art Ltd v The Queen [1986] 2
SCR 713, 35 DLR (4th) 1, 41 (While the Oakes test required the government to go to great lengths to satisfy each
leg, the Edwards Court suggests that the government's showing might be subject to a less exacting standard of
proof and that the same questions need not be asked in every case). The Oakes test was cited with approval in a
large number of early South African Supreme Court judgments, but largely abandoned as a point of reference
after Makwanyane. See Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E), 1994 (1) BCLR 75 (E);
Kauesa v Minister of Home Affairs 1995 (1) SA 51 (Nm), 1994 (3) BCLR 1, 26 (Nm); S v Majavu 1994 (4) SA 268
(Ck), 1994 (2) BCLR 56, 83–84 (Ck).
35 Compare Dawood v Minister of Home Affairs; Shalabi & Another v Minister of Home Affairs; Thomas v Minister
of Home Affairs 2000 (3) SA 936 (CC), 2000 (3) BCLR 331 (CC)('Dawood') with Committee for the
pressing and substantial import to warrant overriding a constitutionally protected right;36 (3) a
proportionality assessment that demands, at a minimum, that a rational connection exist
between the means employed and the objective sought,37 that the means
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employed impair the right as 'little as possible',38 and that the burdens imposed on those whose
rights are impaired do not outweigh the benefits to society that flow from the limitation.39
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While both our Constitutional Court and the Canadian Supreme Court state that limitations
analysis ought, in general, to follow the model adumbrated above, they have rejected the
Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385.
36 Compare National Director of Public Prosecutions & Another v Mohamed NO & Others 2003 (5) BCLR 476
(CC), 2003 (4) SA 1 (CC) with Oakes (supra) at 227 (The Oakes Court suggests that laws which serve such
values as the dignity of the individual, social justice, equality, tolerance, cultural diversity, and a commitment to
representative and participatory politics — constitutive features of a free and democratic society — could be of
sufficient import to justify the infringement of constitutional rights. This list echoes our own quintet, captured in
the phrase an 'open and democratic society based upon human dignity, equality and freedom'. Neither list of
values or objectives is meant to be exhaustive.) See also Vriend v Alberta [1998] 1 SCR 493 (Despite the
benevolent and sufficiently pressing objectives of the Alberta Parliament in promulgating a human rights charter,
Supreme Court finds that the failure of Alberta's human rights charter to prohibit, expressly, discrimination on
grounds of sexual orientation violated, unjustifiably, Charter s 15's right to equality.) But see Little Sisters Book &
Art Emporium v Canada (Minister of Justice) [2000] — SCR — (The legislation reflected a pressing and
substantial parliamentary objective of prohibiting the entry of socially harmful materials into Canada, and the
customs procedures under scrutiny were rationally connected to that objective.)
37 The requirement that the restrictive measure be rationally connected to the achievement of its objective is a
test legislation rarely fails in Canadian jurisprudence. But see Oakes (supra) at 200 (Reverse onus provision
requiring individual in possession of drugs to show that she was not trafficking deemed rationally unrelated to
objective of stopping trafficking); Andrews v Law Society of British Columbia [1989] 1 SCR 143, 56 DLR (4th) 1
(Holds that citizenship requirements for bar membership were unrelated to the objective of ensuring that lawyers
carried out their duties in an honourable and conscientious manner); Benner v Canada [1997] 1 SCR 358
(Stricter requirements for Canadian citizenship placed upon a person born outside of Canada before 1977 to a
Canadian mother than those requirement placed upon a person born to a Canadian father before 1977 were
found not to be rationally connected to the objective of keeping dangerous people out of the country.) The
rational connection requirement — which provides a minimum floor for justification below which government's
explanations may not fall — has been dispositive in a relatively large number of South African cases. See, eg, S
v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) at paras 20, 22–23 (Court held that
effective prohibition of the abuse of illegal drugs would not be substantially furthered by a legislative presumption
that a person found in possession of 115 grams of dagga is a dealer, and thus that there was no logical
connection between such possession and the presumption that the person is trafficking); S v Dodo 2001 (3) SA
382 (CC), 2001 (3) BCLR 279, 293–94 (CC)(Court found no rational relationship between a mandatory sentence
of life imprisonment and the crime for which it was imposed because state could not demonstrate that the penalty
would serve as a deterrent); Lesapo v North West Agricultural Bank & another 2000 (1) SA 409 (CC), 1999 (12)
BCLR 1420 (CC) at para 26 (Limitation only minimally related to its purpose.) See, for further references to
apposite cases, § 34.8(c)(iv) infra.
38 For examples in Canadian jurisprudence, see Dunmore v Ontario [2001] 3 SCR 1016 (Canadian Supreme
Court finds that the exclusion of agricultural workers from the respondent's labour relations statute did not
constitute least restrictive limitation on the right to freedom of expression); UCFW v Kmart Canada, [1999] 2 SCR
1083 (Prohibition of a peaceful distribution of leaflets by a striking union at sites not included in the labour dispute
was found not to be the least restrictive means of minimizing disruption of businesses not involved in the
dispute); Thomson Newspapers Co. v Canada [1998] 1 SCR 877 (Prohibition of the publication of opinion polls in
the final three days of an election campaign was found not to be the least restrictive means of protecting voters
from inaccurate information); Ross v New Brunswick School District [1996] 1 SCR 825 (Recommendation by
board of inquiry that a person employed in a non-teaching position by the school board must be fired if he
continued with his distribution of anti-semitic leaflets deemed not to be the least restrictive means of rectifying a
discriminatory climate in the school); RJR-McDonald v Canada [1995] 3 SCR 199 (Federal ban on all advertising
of tobacco products deemed not to be the least restrictive means of reducing the consumption of tobacco.) For
examples in South African jurisprudence, see S v Manamela & Another (Director-General of Justice Intervening)
2000 (3) SA 1 (CC), 2000 (5) BCLR 491 (CC) at para 43 (Purpose of a reverse onus provision, in terms of which
someone who had acquired stolen goods was presumed to be guilty of a statutory offence, could also be
achieved by a less restrictive means, namely a more narrowly tailored reverse onus provision which was confined
to certain categories of more expensive stolen goods); Phillips & Another v Director of Public Prosecutions
(Witwatersrand Local Division) & Others 2003 (3) SA 345 (CC), 2003 (4) BCLR 357 (CC) at paras 26–28
(Objective of the limitation — to minimise the harm that may result from the consumption of liquor in public places
— could be achieved through measures that were less restrictive of the right to freedom of expression.) For
further examples of such cases, see § 34.8(c)(v) infra.
ostensibly more mechanical approach to limitations delineated in Oakes.40 Whether the benefits
of a flexible test outweigh the potential for confusion with respect to its application by lower
courts and its use as a standard by state and private actors is a subject that shall occupy us
throughout the remainder of this chapter.41
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Many of the obvious influences of other constitutional documents on the Interim Constitution's
limitation clause have been eliminated from the text of the Final Constitution. IC s 33 required
limitations of certain rights to be both 'reasonable' and 'necessary', while other rights could be
limited in a manner that was merely 'reasonable'. That distinction, clearly inspired by the
doctrines of strict scrutiny, intermediate scrutiny and rationality review found in American equal
protection and fundamental rights jurisprudence, was excised in favour of a test that does not
However, neither the Canadian Supreme Court nor our Constitutional Court requires perfection — or the least
restrictive means in the best of all possible worlds. See Reference re ss 193 and 195.1(1)(c) of the Criminal Code
[1990] 1 SCR 1123, 1138, 56 CCC (3d) 65 ('The legislative scheme ... need not be the most 'perfect' scheme that
could be imagined by this Court or any other Court. Rather it is sufficient if it is appropriately and carefully
tailored in the context of the infringed right.') The Constitutional Court, while accepting the Final Constitution's
invitation to consider the availability of less restrictive means, has made it clear that such a requirement does not
mean that the legislature must, in fact, have identified and enshrined in law the least restrictive means for
achieving the objective of a limitation. See Case & Another v Minister of Safety and Security & Others; Curtis v
Minister of Safety and Security & Others 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC) at para 62 (Mokgoro J)
(Court affords legislature a 'margin of appreciation' with respect to choosing the most effective means of
achieving a constitutionally permissible objective.) Moreover, institutional comity cautions against the substitution
of its judgment of what constitutes the least restrictive means for the well-considered opinion of the legislature or
the executive. For more on 'less restrictive means', see § 34.8(c)(v) infra.
39 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] 2
SCR 1326, 64 DLR (4th) 577), by-pass and notice provisions for abortions (R v Morgenthaler [1988] 1 SCR 30,
44 DLR (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 the other 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
victims' names (Canadian Newspapers Co v Canada (Attorney General) [1988] 2 SCR 122, 52 DLR (4th) 690),
and to prohibit picketing outside courthouses (BCGEU v British Columbia (Attorney General) [1988] 2 SCR 214,
53 DLR (4th) 1) to impose costs proportionate to the benefits realized.
In appraising whether the costs imposed by a limitation outweigh the benefits that might otherwise accrue, the
Constitutional Court sometimes considers whether the limitation affects the core values underlying a particular
right. It has found that the right to be tried in a hearing presided over by a judicial officer is a core component of
the right not to be detained without trial. See De Lange v Smuts NO & Others 1998 (3) SA 785 (CC), 1998 (7)
BCLR 779 (CC) at para 89. Similarly, reverse onus provisions are said to strike at the heart of the right to be
presumed innocent, and so require a clear and convincing demonstration that the benefits of such a provision
outweigh its costs. See Manamela (supra) at para 49. By contrast, the benefits that flowed from a prohibition of
child pornography were found to outweigh considerably the costs imposed upon those persons whose right to
freedom of expression had been restricted. See De Reuck (supra) at para 59. For more on the notions of 'the
core' and 'the periphery', see §§ 34.8(c)(iii) and (d) infra.
40 See Edward Books and Art Ltd v The Queen [1986] 2 SCR 713, 35 DLR (4th) 1, 41 ('[T]he nature of the
proportionality test would vary depending upon the circumstances. Both in articulating the standard of proof and
in describing the criteria comprising the proportionality requirement, the Court has been careful to avoid rigid and
inflexible standards'); Black v Law Society of Alberta [1989] 1 SCR 591, 58 DLR (4th) 317, 348 ('[L]egislature
must be given sufficient room to achieve its objective'); USA v Cotroni [1989] 1 SCR 1469, 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, 41 ('The test must be approached in a flexible manner. The analysis
should be functional, focusing on the character of the classification in question, the constitutional and societal
importance of the interests adversely affected, the relative importance to the individuals affected of the benefit of
which they are deprived, and the importance of the state interest.') The Canadian Supreme Court has said that
cases involving the criminal justice system are subject to closer judicial scrutiny and a stricter form of the minimal
impairment test than labour or business regulations, because criminal justice is an area in which the court can
claim greater expertise. See McKinney v University of Guelph [1990] 3 SCR 229, 76 DLR (4th) 545. But in at
least one criminal case, the Supreme Court applied a fairly weak version of the minimal impairment test and
upheld the extradition of the accused. See USA v Cotroni [1989] 1 SCR 1469, 48 CCC 193. See also Dagenais v
Canadian Broadcasting Corp (1994) 120 DLR (4th) 12 (Court employs weaker version of Oakes test in criminal
context.)
The Oakes test has no special place in South African constitutional jurisprudence. Although the Oakes test
featured prominently in the Makwanyane Court's discussion of comparative limitations jurisprudence, Chaskalson
P was quick to point out that 'there are differences between our Constitution and the Canadian Charter which
have a bearing on the way in which section 33 should be dealt with'. Makwanyane (supra) at paras 105–107, 110.
Chaskalson P gave no indication of what the relevant differences might be, but simply echoed the words of
pre-judge the importance of the fundamental rights found in Chapter 2. And while the German
Basic Law's contribution of the requirement that limitations of fundamental rights can only be
justified by reference to a 'law of general application' remains on the books,42 the drafters of the
Final Constitution decided not to retain its proscription of limitations that 'negate the essential
content of [a] right'.43
34.3 Relationship between fundamental rights analysis and
limitation analysis
This section attempts to answer a basic question in Bill of Rights analysis: how does
fundamental rights analysis relate to limitation clause analysis? That is, what happens in the first
stage of analysis, what remains to be done in the second stage, why do we allocate certain
analytical tasks to one stage and not the other, and how do we justify our overall approach to
constitutional interpretation?
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(a) The value-based approach and the notional approach
The general nature of constitutional interpretation and the interpretation of fundamental rights are
dealt with at length elsewhere in this work.44 To rehearse the conclusions of those chapters
briefly, FC s 39 tells us that the content and the scope of the rights enshrined in Chapter 2
should be determined in the light of the five fundamental values which animate the entire
constitutional enterprise: openness, democracy, human dignity, freedom, and equality.45 FC s 39
thereby confirms that the determination of a right's scope is a value-based exercise. However,
the scope-determinative values are not limited to the five identified in FC s 39. For each right
there are specific values that can be said to have led to its constitutionalization. The specific
Kentridge AJ in Zuma that 'I see no reason in this case ... to fit our analysis into the Canadian pattern.' See
Zuma (supra) at para 35.
41 With respect to limitations analysis under the Charter, Ruth Colker has suggested that too loose a
proportionality test threatens indiscriminate judicial deference to legislative and executive prerogatives. See Ruth
Colker 'Section 1, Contextuality and the Anti-disadvantage Principle' (1992) 42 University of Toronto LJ 77, 104.
There is also a second danger. A lack of analytical precision may make it more difficult to anticipate the kinds of
arguments that would lead the court to conclude that a limitation of a right is (or is not) reasonable and justifiable.
The absence of rules of law to which political actors must align their behaviour undermines the ability of other
branches of government to comply with the Bill of Rights — and places the court in the unnecessarily
uncomfortable position of having to reject or to accept government's positions in any given case as if they were
ruling ab initio. We believe that such considerations constitute some of the strongest arguments against
Sunstein's 'one case at a time' approach or Currie's 'jurisprudence of avoidance'. See Cass Sunstein One Case
at a Time (1996); Iain Currie 'Judicious Avoidance' (1999) 15 SAJHR 138. In addition, the absence of clearly
articulated rules undermines rational political discourse. Reasoned disagreement can only take place when the
parties agree on the terms of the debate. The Constitutional Court abdicates its institutional responsibility to
model rational political discourse by refusing to state, in a comprehensive manner, the reasons that lead to its
conclusions. Finally, avoidance undermines the 'integrity' of the legal system. It is impossible to create a more
coherent jurisprudence without identifying the rules — and the reasons — that ground decisions.
42 For more on German constitutional jurisprudence and its contribution to the Interim Constitution, see Matthew
Chaskalson, Dennis Davis & Johan de Waal 'Democracy and Constitutionalism: The Role of Constitutional
Interpretation' in D van Wyk, J Dugard, B de Villiers & D Davis (eds) Rights and Constitutionalism: The New
South African Legal Order (1994) 1. See also Johan de Waal 'A Comparative Analysis of the Provisions of
German Origin in the Interim Bill of Rights' (1995) 11 SAJHR 1.
43 Article 19.2 of the German Basic Law reads, in relevant part: '[I]n no case may the essential content of a right
be encroached upon.' The inclusion of this clause in the German Basic Law reflects the drafters' belief that
legislation under the Weimar Constitution had been interpreted in such a way as to permit the complete
evisceration of that constitution's guarantees. The clause was designed to provide a floor below which
restrictions on fundamental rights could not fall. See Theodor Maunz & Gunter Durig Grundgesetz Kommentar
(1991) Art 19, II-9; Gerhard Erasmus 'Limitation and Suspension' in D van Wyk, J Dugard, B de Villiers & D Davis
(eds) Rights and Constitutionalism: The New South African Legal Order (1994) 629, 650.
44 Lourens du Plessis 'Interpretation' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS, June 2008) Chapter 32.
45 These five values do not operate on the same normative plane: the conditions required for the realization of the
first two values — openness and democracy — are contingent on the realization of the next three — human
dignity, freedom, and equality. Perhaps, as we discuss below, one should speak of de-linking the first set of
values from the second. See § 34.8(e)(ii) infra.
values that animate each right, along with FC s 39's more general concerns, determine the
right's sphere of protected activity.
On this account, if an applicant can show that the exercise of constitutionally protected
activity has been impaired, then she has made a prima facie showing of a constitutional
infringement. If the infringement was authorized by law, then the state or the party relying upon
this law will have an opportunity to justify its prima facie infringement of the right under the
limitation clause.
There is of course another way to go. One could argue that any activity which could notionally
fall within the ambit of a right is protected. It remains then to show that law — as opposed to
mere conduct — limited the exercise of the right before moving on to the heart of FC s 36
analysis.46 There are several reasons to prefer the first approach to the second approach. First, it
is consistent with the text's admonition that provisions of the Bill of Rights be interpreted in light
of the 'values which underlie an open and democratic society based on human dignity, equality
and freedom'. The Final Constitution was not meant to protect certain forms of behaviour and a
value-based approach permits us to screen out those forms of behaviour which do not merit
constitutional protection. Secondly, high value-based barriers for the first stage of analysis mean
that only genuine and serious violations of a constitutional right make it through to FC s 36. If
only serious infringements make it through, then the court can take a fairly rigorous approach
with respect to the justification for the impairment. It could then be fairly confident that when it
nullified law or conduct there would be something
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worth protecting. Thirdly, the valued-based approach is consistent with the notion that a 'unity of
values' underlies both the rights-infringement determination and the limitation-justification
analysis. The language of the interpretation clause and the limitation clause strongly suggests
that both inquiries are driven by a desire to serve the five values underlying our entire
constitutional enterprise: openness, democracy, human dignity, freedom, and equality.47
The desirability of the value-based approach is perhaps clearer when compared with the
consequences of the notional or the expansive approach to rights interpretation. First, the
notional approach suggests that certain forms of behaviour which we believe do not merit
constitutional protection will in fact receive prima facie protection. Secondly, the notional
approach expands the number of claims that make it to the second stage of analysis. The result
is that if the courts wish to curtail their findings of unconstitutionality, their criteria for the
justification of government limitations on rights have to become more flexible. The further
possibility exists that in order to make their justificatory criteria more flexible the courts will
expand the kinds of objectives which justify limitations on constitutional rights. This result would
seem to stand in direct conflict with the textual demand that both interpretation and limitations
analysis be undertaken in the light of the needs of an open and democratic society based on
human dignity, equality and freedom. Finally, by pushing all of the Chapter 2 analysis into the
limitation clause, and forcing themselves to be more flexible with respect to the grounds for
justification of a limitation, the courts undercut their ability to articulate analytically rigorous
conceptions of rights at the first stage of analysis and useful standards of justification for
limitations at the second stage of analysis.48
46 See Gerhard van der Schyff Limitation of Rights: A Study of the European Convention and the South African
Bill of Rights (2005) 29–124. Van der Schyff defends a notional approach to rights analysis. He argues that 'a
wide interpretation should be followed in order to extend protection to as many forms of conduct and interests as
possible'. Ibid at 32.
47 For a similar discussion of how the 'unity of values' affects the structure of fundamental rights analysis under
the Canadian Charter, see Lorraine Weinrib 'The Supreme Court of Canada and Section One of the Charter'
(1988) 10 Supreme Court LR 469. See also § 34.8(e)(ii).
48 The value-based approach should result in a more restrictive interpretation of the scope or the ambit. It would,
nevertheless, be wrong to characterize this approach as 'narrow' or 'restrictive' — as opposed to generous. The
point is not to restrict the protective ambit of constitutional rights but, rather, to make sense of FC s 39(1)'s
injunction to interpret constitutional rights in view of the values of democracy, openness, dignity, equality and
freedom, and to effect the best possible division of tasks between the first stage and the second stage of
fundamental-rights analysis. Nor can this approach be characterized as 'minimalist.' Minimalism, as a judicial
stratagem, is designed to permit judges to avoid deciding difficult doctrinal issues. The result is often judgments
that are radically under-theorized. The value-based approach requires judges to articulate the basis for their
pronouncements at both stages of the inquiry. If anything, the value-based approach to rights interpretation and
(b) The Constitutional Court's approach to two-stage analysis
For the most part, the problem with the Constitutional Court's current position on the two-stage
approach to fundamental rights analysis is that it offers little insight or guidance.49 The Court has
neither described in detail the analytical processes
OS 07-06, ch34-p19
that occur at each step nor has it justified the allocation of certain tasks to particular stages of
the analysis.50 Early on in the Court's tenure, two justices had something relatively substantial to
say about the relationship between rights interpretation and limitations analysis. Sachs J states
his position(s) in a concurrence in Coetzee and a concurrence in Ferreira. Ackermann J states
his position(s) in a dissent in Ferreira and the majority opinion in Bernstein.51
In Ferreira Sachs J sets out to develop the Court's largely unarticulated understanding of the
relationship between rights analysis and limitations analysis in a manner which ostensibly avoids
the alleged 'sterility' of the two-stage approach.52 Sachs J's rationale for his project flows from his
belief that the Court 'should not engage in purely formal or academic analyses, nor simply
restrict [itself] to ad hoc technism'.53 Rather the Court should, when undertaking fundamental
rights analysis, 'focus on what has been called the synergetic relationship between the values
underlying the guarantees of fundamental rights and the circumstances of the particular case'.54
The judge then concludes that '[i]n [his] view, faithfulness to the Constitution is best achieved by
locating the two-stage balancing process within a holistic, value-based and case-oriented
framework'.55 Beyond these generalizations, Sachs J offers little in the way of clear direction for
what a new relationship between rights interpretation and limitations analysis would look like. He
simply enjoins his fellow judges to 'exercise ... a structured and disciplined value judgment,
taking account of all the competing considerations that arise in the present case'.56
There are several potential problems with Sachs J's intervention on this subject. First, a two-
stage approach is not necessarily 'formal' or 'academic'. The quality of the inquiry depends on
the nature of the questions asked, not on their number or their order. Secondly, it is impossible to
know what Sachs J means by a 'synergetic relationship' between the two stages of analysis or by
the 'exercise ... of a structured and disciplined value judgment' when he gives neither examples
nor further description of these processes. Thirdly, and most disturbing, is Sachs J's vision of a
'two-stage balancing process within a holistic, value-based and case-oriented framework'.
Sachs J's apparent vision of balancing at both stages ignores the clear intention and the
structure of a bill of rights which possesses both fundamental rights and a general limitations
clause: that different forms of analysis will take place at different stages of analysis. Intentions
and structure aside, as a historical matter few
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judges and academics view the first stage of analysis as involving a balancing of interests. The
first stage of analysis is generally understood to require the judge to determine the ambit of the
right. The determination is made by asking what values underlie the right and then, in turn, what
practices serve those values. The judge is not required to compare the importance of the values
underlying the right allegedly being infringed with the values said to underlie the policy or right or
limitations analysis reflects 'maximalist' orientation towards constitutional interpretation.
49 See, eg, Makwanyane (supra) at para 100 ('Our Constitution ... calls for a "two-step" approach, in which a
broad rather than a narrow interpretation is given to the fundamental rights enshrined in Chapter 3 and limitations
have to be justified through the application of s 33.')
50 But see Prinsloo v Van der Linde 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759 (CC) at para 35 (Court
recognizes difference between definitional questions asked at the rights infringement stage and justificatory
questions asked at the limitations stage).
51 Bernstein & Others v Bester & Others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC).
52 Coetzee v Government of the Republic of South Africa; Matiso & Others v Commanding Officer, Port Elizabeth
Prison 1995 (4) SA 631 (CC), 1995 (10) BCLR 1382 (CC)('Coetzee') at para 46.
53 Ibid.
54 Ibid.
55 Ibid.
56 Ibid at para 47.
interest said to support the alleged infringement. This comparison is left for the second stage of
analysis under the limitations clause. It is under the limitations clause that we ask whether a
party's interest in having a challenged law upheld is of sufficient import to justify the infringement
of a right.
Another sense of 'value choice' employed during the process of determining the contours of a
right is worth discussing: namely, the fact that not all activity that might notionally qualify as a
demonstration merits the right's protection.57 For example, a group of skinheads tossing
trashcans through plate-glass windows, shouting racial epithets, and protesting the presence of
immigrant communities might be attempting to convey collectively a 'political' message that is
generally not countenanced by mainstream parties. The fact that it is not a peaceful conveyance
and, indeed, that the primary motivations for the acts are destructive and not communicative
may, however, take this demonstration outside the bounds of protected activity.58
What should be clear is that the determination made here is one of definition or demarcation,
not balancing. We are asking what counts as protected assembly activity, not whether this kind of
protected activity, when offset against some competing set of public or private interests, still
merits protection. We are deciding what values animate and what practices are protected by a
particular right. The problem of value conflict between a right and a law that limits the exercise of
that right is played out at the next stage of inquiry — the limitations clause.
At the same time, there are occasions in which it makes sense to talk about value conflict
within a right. For example, freedom of expression is generally understood to be grounded, at
least in part, in the value of political participation. However, the value of political participation may
be served by practices which
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conflict with one another.59 Hate speech may be thought by those expressing it to reflect their
participation in or contribution to the political process. At the same time the targets of the hate
speech — especially when it is directed at small or marginal social groups — may find that the
expression of hate speech makes it difficult for them to express themselves fully or equally in the
public square. They may feel coerced into silence by the hate speech. They may feel that the
hate speech creates invidious conditions in which others will inevitably fail to listen to them or to
take them seriously. Hate speech thus creates a paradox. Deny the expression of the hate
speakers and you deny them full political participation. Permit the expression of the hate
speakers and you deny the targets of their hate speech full political participation. It is a value
conflict, under the freedom of expression, which cannot be reconciled. One kind of expression,
and its attendant value, must give way to another form of expression, with its attendant value.
But this assessment is not a form of balancing. One unconstitutional practice yields to another
constitutionally protected practice. So this 'paradox' lends no support to the proposition that
balancing occurs at both stages of analysis.
If a general limitations test is cause for concern for those interested in strong rights
enforcement, then talk of introducing balancing into the first stage of analysis — where one
determines the ambit of the right — should be cause for alarm. Doing balancing at both stages is
an open invitation for the worst kind of analytical confusion.60 How, one must ask, does the
57 Stu Woolman 'Freedom of Assembly' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop
(eds) Constitutional Law of South Africa (2nd Edition, OS, February 2005) Chapter 43.
58 We have already noted that we are indebted to Halton Cheadle for pointing out that in the first edition of this
work one of the authors — Stu Woolman — erred when he suggested that an assessment of the entitlement of
the claimant to the benefit of a constitutional right is a part of rights analysis. Cheadle observed correctly that the
author had conflated issues of standing and rights analysis. See Halton Cheadle 'Limitation of Rights' in H
Cheadle, D Davis & N Haysom (eds) South African Constitutional Law: The Bill of Rights (2002) 693, 696. But we
must point out that the actual quote from the chapter by Stu Woolman in the first edition of this work, which
Cheadle cites in support of this otherwise correct proposition, does not support his subsequent analysis. Ibid at
696.
59 See Robert Post 'The Constitutional Concept of Public Discourse' (1990) 103 Harvard LR 601; Robert Post
'Racist Speech, Democracy and the First Amendment' (1991) 32 William & Mary LR 267.
60 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, 115–21; Stu Woolman & Johan de
Waal 'Voting With Your Feet: The Freedom of Assembly' in D van Wyk, J Dugard, B de Villiers & D Davis (eds)
Rights and Constitutionalism: The New South African Legal Order (1994) 292, 308–14.
balancing at the first stage differ from the balancing at the limitations stage? What 'balancing of
what' does one do at each stage? Why have the limitations clause at all? Greater specification of
the modalities of both rights interpretation and limitations analysis would seem to be required.61
Of course, we may have misinterpreted Sachs J's interventions in Coetzee. 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 of IC 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 the state', Sachs J suggests that
'the Constitution ... requires the court to focus its attention on real and substantial infringements
of fundamental rights.'62 A charitable reading of this intervention might lead one to conclude that
Sachs J believes that the rights interpretation and limitations analysis differ substantially. But we
are not
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convinced, by any other statement in either opinion, that an integrated assessment of Sachs J's
conclusions in Coetzee and Ferreira yields new fruit with respect to our understanding of the
relationship between rights interpretation 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 rights analysis. He writes:
[I]t is necessary, as a matter of construction, to define or circumscribe the s 11(1) right to the extent
necessary for purposes of this decision ... [S]ome attempt must be made at this stage to determine
the meaning, nature and extent of the right ... This court has given its approval to an interpretive
approach 'which ... gives expression to the underlying values of the Constitution'.63
But after reading 'freedom' in IC s 11(1) disjunctively from 'security of the person', and then giving
a ringing defence of 'freedom' qua negative liberty, Ackermann J's real position on rights analysis
and limitations analysis becomes clearer. He argues that while a 'broad and generous
interpretation does not deny or preclude the constitutionally valid ... role of state intervention in
the economic as well as the civil and political spheres ... legitimate limitations on freedom must
occur through and be justified under the principles formulated in IC s 33(1), not by giving a
restricted definition of the right to freedom.'64 While some interpreters might characterize this
approach to rights analysis as both purposive and generous,65 it seems to possess the same
problems that attach to the notional approach to rights interpretation described above: all the
difficult inquiries take place within the rather amorphous frame provided by the limitations
clause.66
Two particular problems with the notional approach — as it was applied to freedom of the
person under IC s 11(1) — are worth mentioning. First, one reason that Ackermann J's judgment
is rejected by the majority is the relative unboundedness he imputes to IC s 11(1). Although he
describes IC s 11(1)'s right to freedom as being a residual right, he says that if an enumerated
right cannot first be found upon which to ground a constitutional challenge to some restriction
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of individual liberty, then resort may be had to IC s 11(1). The result, of course, is that
Ackermann J's judgment practically begs petitioners to rest at least a portion of all their
61 See Alfred Cockrell 'Rainbow Jurisprudence' (1996) 12 SAJHR 1.
62 Ferreira (supra) at para 252.
63 Ferreira (supra) at para 252.
64 Ibid at para 45, quoting Makwanyane (supra) at para 9.
65 See Halton Cheadle 'Limitation of Rights' in H Cheadle, D Davis & N Haysom (eds) South African
Constitutional Law: The Bill of Rights (2002) 693, 696.
66 In fairness to Ackermann J, the problem with his approach to limitations analysis in Ferreira and Bernstein
could be entirely a function of his conception of 'freedom'. However, the Court's judgment in FNB, where FC s 25
arbitrariness analysis results in a proportionality test that creates, in Theunis Roux's words, 'a vortex' that
captures the entire universe of rights and limitations inquiries, suggests that the Court's — and Ackermann J's —
difficulties with maintaining the analytical rigour required by two-stage analysis in Ferreira are not at all
exceptional. See Theunis Roux 'Property' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop
(eds) Constitutional Law of South Africa (2nd Edition, OS, December 2003) Chapter 46.
challenges to some alleged constitutional infringement on IC s 11(1). Secondly, on Ackermann
J's understanding, a petitioner might fail to succeed at the first stage of a challenge based on the
right to privacy, and yet succeed at the first stage of a challenge based on the unenumerated
rights found in IC s 11(1). As Chaskalson P points out, the petitioner would then benefit from the
fact that restrictions on IC s 11(1) are subject to the 'necessary' standard of review under IC s 33
and thus have a better chance at ultimately convincing the Court to find the restriction
unconstitutional.67 This anomaly would have meant that an applicant bringing a challenge under
the Interim Constitution would actually have preferred to fail on a privacy challenge — which
received only 'reasonable' review — and succeed on a residual freedom challenge — which
received the higher level of limitations review. Chaskalson P bases at least part of his rejection of
Ackermann J's interpretation of IC s 11(1) on the possibility of such a scenario. One might well
have agreed with Ackermann J's response that the level of scrutiny a restriction of a right
receives under the limitations clause of the Interim Constitution should not affect the court's
determination of the content of a right — and that according freedom of the person a higher level
of limitations review than privacy is not necessarily anomalous. However, it is Ackermann J's
largely notional approach to a right's review — and the dumping of all the important analysis into
the limitations clause — that creates the aforementioned problem. For reasons already assayed,
the majority of the Ferreira Court rightly avoided the problems associated with this approach.
Perhaps chastened by the majority's rejection of his interpretation of IC ss 11(1) and 33(1) in
Ferreira, Ackermann J changes tack in Bernstein in analyzing an attack on the Companies Act
based upon IC s 13, the right to privacy. He begins with a brief excursus about the meaning of
privacy: he surveys its relationship to autonomy, the dependency of autonomy on community, the
common law of privacy in South Africa, international instruments, and the comparative
constitutional jurisprudence.68 He then draws the following conclusions. First, 'the "right to
privacy" relates only to the most personal aspects of a person's existence, and not to every
aspect of his/her personal experience or knowledge.'69 Secondly, 'in defining the right to privacy,
it is necessary to recognize that the content of the right is crystalized by mutual limitation. Its
scope is already delimited by the rights of the community as a whole.'70
Bernstein's clearly value-based circumscription of the right to privacy is somewhat startling.
Bernstein's mode of rights analysis appears antithetical to the mode
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of rights analysis adumbrated by Ackermann J in Ferreira.71 In Bernstein, Ackermann J
concludes that not every activity or experience that could notionally count as private deserves
constitutional protection under IC s 13. Only those practices that serve the values understood to
underlie the right to privacy fall within the sphere of activity protected by the right. While one may
disagree with the content Ackermann J ascribes to privacy,72 he does give the right some
discernible value-based content.
But what promise Bernstein offers for a coherent framework for rights interpretation and
limitation analysis, Beinash takes back.73 In Beinash v Ernst & Young, the Constitutional Court
addresses the question of whether s 2(1)(b) of the Vexatious Proceedings Act74 violates the right
67 Ferreira (supra) at paras 173–174.
68 Bernstein & Others v Bester & Others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC)('Bernstein') at
paras 65–79.
69 Ibid at para 79.
70 Ibid.
71 There is, of course, a more benign interpretation of Ackermann J's approach to the relationship between rights
analysis and limitations analysis. One could argue that in Ferreira he takes a purposive and generous approach
to rights interpretation because the meaning of 'freedom' in IC s 11(1) warrants such a generous approach. One
could then argue that in Bernstein he takes a purposive and non-generous approach to rights interpretation
because the meaning of 'privacy' in IC s 13 warrants such a non-generous approach. The problem with this
explanation is that Ackermann J does not explain why one right is generously construed while the other is
restrictively construed.
72 See David McQuoid-Mason 'Privacy' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop
(eds) Constitutional Law of South Africa (2nd Edition, OS, December 2003) Chapter 39.
73 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC)('Beinash').
74 Act 3 of 1956.
of access to court under FC s 34.75 The sum total of the Beinash 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 persons who
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 which protects
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 to court
protected in section 34 of the Constitution.76
As a rule, an applicant must run the following gauntlet: (1) ambit determination of the right; (2)
impairment of the exercise of the right by law or conduct. Having run this gauntlet, the applicant
can rest assured that she has made, at the very least, a prima facie showing of a constitutional
infringement. But this is hardly the
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path traversed by Mokgoro J in Beinash. Mokgoro J does not ask how FC s 34's right of access
to court is to be understood in light of FC s 39's five foundational values. Mokgoro J does not
inquire into the drafters' motivations for enshrining the right in Chapter 2 or speculate as to the
specific practices served by FC s 34.77 Mokgoro J does not even seriously question whether the
applicant's activity was entitled to the protection of the right. Indeed, if she had asked, and
answered, any of these inquiries, she might well have held that the applicant's actions were not
protected. As we read the facts in Beinash — and the ultimate conclusions of the Court —
Mokgoro J ought never to have reached FC s 36.
First, as a matter of logic, it is impossible to guarantee access to court if the court system is
awash in frivolous and vexatious litigation. Put another way, one cannot provide access to the
courts if such access is blocked by a mountain of pre-existing petty proceedings. If the right of
access itself must, of necessity, be understood to exclude those actions which make its exercise
impossible, then vexatious litigation is exactly the kind of activity which should not fall within the
protective sphere of the right. Secondly, other rights indicate the specific ends which FC s 34
was designed to protect. As Mokgoro J herself notes in her limitation analysis, FC ss 7(2), 34, 35
and 165 constitute a constellation of rights and powers whose very essence demands the ever
vigilant protection 'of bona fide litigants, the processes of the courts and the administration of
justice against vexatious proceedings'.78 FC s 35 protects 'arrested, detained and accused
persons' with an extraordinarily detailed set of procedures and prohibitions. However, it is quite
clear that no matter how explicit FC s 35's protections are, they will not be able to ensure the
proper functioning of our system of criminal justice if the courts are tied up with civil matters. FC
s 165(3) and (4) make this point expressly clear. FC s 165(3) reads: 'No person or organ of state
may interfere with the functioning of the courts.' FC s 165(4) reads: 'Organs of 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 preclude vexatious litigation,
then it is difficult to imagine why FC s 34 should be understood to provide any solace to the
vexatious litigant. Thirdly, it is difficult to see how vexatious litigation — which undermines the
rule of law, democratic institutions and civil society — can be said to serve the five foundational
75 Fevrier J in the High Court had found the applicants to be vexatious litigants in terms of the Vexatious
Proceedings Act. Beinash v Ernst & Young 1999 (1) SA 1114 (W). This order barred the applicants from bringing
any legal proceeding in any court anywhere in South Africa without first securing the appropriate leave from a
judge of the High Court. The applicants lodged an appeal with the Constitutional Court. They argued that the
provision relied upon by Fevrier J violated their right of access to court under FC s 34. In the alternative, they
argued that, as a constitutional matter, Fevrier J had incorrectly exercised his discretion in devising this particular
punishment. The Constitutional Court found that the applicable provision of the Vexatious Proceedings Act did
indeed infringe the applicants' right of access to court under FC s 34. The Court, however, then held that the
Act's infringement of the applicant's right of access to court was both reasonable and justifiable under FC s 36.
The Constitutional Court saved the Act on the grounds that the Act establishes an invaluable screening
mechanism for the legal system: it ensures that South African courts are not swamped by matters without any
merit nor abused by litigants seeking to extort settlements from their innocent adversaries.
76 Beinash (supra) at para 16.
77 FC s 34 reads: 'Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal
or forum.'
78 Beinash (supra) at para 17.
values underlying our constitutional enterprise.79 One must have a very generous understanding
of 'openness' or 'freedom' to find that court actions designed to bring the wheels of justice to a
grinding halt actually strengthen our nascent democracy. Fourthly, even if one thought that the
applicant had made the case for an expansive interpretation of the right, it is not clear that the
applicant's right of access to
OS 07-06, ch34-p26
court has been impaired (or limited) by the provisions in question. As Mokgoro J observes, the
applicant has the right to apply to the High Court to lift the order declaring him a vexatious litigant
and has the right to approach the High Court for relief should a prima facie meritorious matter
arise.
Yet, instead of a careful exegesis of the right and the provisions under attack, Mokgoro J
justifies her overly expeditious approach to rights analysis by noting that FC s 34 'does not
contain any internal limitation of the right'. But this argument is a red herring in an opinion
brimming with lemmings. As we argue at length below, the presence of an internal limitation or
an internal modifier does not alter the basic structure of fundamental rights and limitation
analysis.80 That is, even if the section in question possessed an internal limitation, it certainly
would not obviate the need for a thorough-going analysis of the ambit of the fundamental right
and a finding as to whether the protected activity has indeed been impaired by the law in
question.
The Beinash Court's short-circuited rights analysis is saved by its reasoning under the
limitation clause. At the time, the upholding of a law at the limitation stage made Beinash entirely
unique. No rule of law, up until Beinash, had been upheld by the Constitutional Court after being
subjected to limitations analysis under FC s 36.
But this unique feature of the judgment comes at a cost. The first cost is that the Court's
notional approach to rights interpretation drives all of the meaningful assessment of the issues
raised in the case into the limitation clause. The second cost is that this inappropriate 'dumping'
of rights issues forces the court to fudge its analysis of one of the critical legs of the limitation
test. At least two steps of the limitation test employed in Beinash reflect determinations that
should have been undertaken under the right itself. When considering 'the nature of the right in
terms of section 36(1)(a)' Mokgoro J writes: '[A] restriction of access in the case of a vexatious
litigant is in fact indispensable to protect and secure the right of access for those with meritorious
disputes.'81 As we argued above, this point is logically connected to a determination of the
content of the right and whether the applicant's activity was indeed deserving of constitutional
protection. When considering 'the importance of the purpose' of the Act according to FC s 36(1)
(b), Mokgoro J cites an array of rights — FC ss 7, 35, and 165 — to support the proposition 'that
bona fide litigants, the processes of the courts and the administration of justice' all require the
kind of protection the Act offers against vexatious proceedings.82 Again, the Court should have
made the case — much earlier — that these rights inform our understanding of the content of FC
s 34.
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 objectives merit
constitutional salvation (3) to proof of a
OS 07-06, ch34-p27
rational relationship between the law's ends and the means it employs (4) to an appraisal of the
costs and benefits of the legal regime under scrutiny (5) to a demonstration that the rule of law in
question adopts means that are as narrowly tailored as possible to achieve the objectives of the
law.
79 See President of the Republic of South Africa & Another v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC),
2005 (8) BCLR 786 (CC)('Modderklip')(Meaningful access to a court of law — and that means adequate
remedies — is an essential component of a just and well-ordered society based upon the rule of law.)
80 For more on internal modifiers and internal limitations, see §§ 34.4 and 34.5 infra.
81 Beinash (supra) at para 17.
82 Ibid.
When the Beinash Court finally considers leg (5) — FC s 36(1)(e) – and asks whether 'less
restrictive means to achieve the purpose' of the Act exist, Justice Mokgoro does not squarely
address the issue of whether the Act's aims could have been achieved via a more narrowly
tailored remedy. Instead, she remarks that the Act has struck an appropriate balance between
means and ends. This is, of course, an answer; but not an appropriate answer to the question
actually raised by this particular factor.83 No alternative scheme is considered. No alternative
language for the statute is contemplated.84 We have no way of knowing, from the Court's express
deliberations, whether or not the existing provisions of the Vexatious Proceedings Act constitute
some of the least restrictive means of achieving the Act's purpose.85
And thus there would appear to be at least some evidence for our second contention: by
neglecting to engage in any serious examination of the content of FC s 34's right of access to
court and by canvassing all of the consequential constitutional issues under the limitation clause,
the Court was actually forced to fudge its analysis of FC s 36(1)(e). The Beinash Court could
have averted the analytical confusion that takes place in its limitations analysis if it had
undertaken a value-based approach to its determination of the right's ambit in the first place.
Proof, however, that the Constitutional Court is vaguely aware of (ongoing problems with) the
appropriate division of tasks between the two stages of analysis and consciously struggles to
fashion a coherent approach to fundamental rights and limitation analysis is evident from its
decisions in August & Another v Electoral Commission & Others,86 New National Party of SA v
Government of the RSA & Others87 and Democratic Party v Government of the RSA & Others.88
In August, the Court found that FC ss 6 and 19 created an unqualified right of adult suffrage.
But the result in August was rather easily reached: the Electoral Commission had failed to put in
place any mechanism at all that would enable prisoners to exercise the franchise. There was no
law to justify the infringement.
The Court in NNP and DP faced the more daunting task of deciding whether the Electoral
Act's bar-coded ID requirement was an infringement of the
OS 07-06, ch34-p28
franchise, and a justifiable one at that.89 As was noted above, an applicant must run the following
two-step gauntlet when trying to establish a prima facie infringement of a right: (1) ambit of the
right determination; (2) demonstration that the law or conduct challenged actually impairs or
limits the exercise of the right. What the Constitutional Court in NNP and DP effectively held was
that, in order to establish a prima facie infringement of the franchise — for the rights-bearer to
show that she was entitled to exercise the franchise — the rights-bearer would have to show that
she acted reasonably in an attempt to exercise her right to vote. If her reasonable efforts to
exercise the franchise were thwarted by the government's electoral scheme, then she would
have demonstrated a prima facie infringement. In short, where the meaningful exercise of a right
depends upon the positive action of both government and citizenry, then the rights-bearer may
be asked to demonstrate that she 'acted reasonably in pursuit of the right' before the court will
grant that she is entitled to the protection afforded by the right.90 If she succeeds at the rights
stage, 'the question would then arise whether the limitation [created by the government's
83 Beinash (supra) at para 21.
84 For example, the Beinash 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 order with a sunset clause — unlike an order to which an indefinite time period and penalty attach —
would seem to be a less restrictive means of achieving the Act's purpose.
85 As we note below, the Court does not demand that the law reflect the least restrictive means imaginable, but
only that the lawmaker genuinely attempt to employ the least restrictive means in pursuit of its ends. For more on
FC s 36(1)(e), see § 34.8(c)(iv) infra.
86 1999 (3) SA 1 (CC), 1999 (4) BCLR 363 (CC)('August').
87 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC)('NNP').
88 1999 (3) SA 254 (CC), 1999 (6) BCLR 607 (CC)('DP').
89 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 the
Identification Act 72 of 1986 or a temporary identity document issued under the Identification Act 68 of 1997.
90 NNP (supra) at para 23.
scheme] is justifiable under the provisions of s 36'.91 While taking into account the peculiar
demands the franchise places upon both government and citizen, the NNP and DP Courts were
still able to maintain the basic integrity of Chapter 2's two stages of analysis.92
OS 07-06, ch34-p29
That's not to say that there isn't occasional backsliding. In Christian Education South Africa v
Minister of Education, the Constitutional Court simply assumed that the exercise of FC ss 15 and
31 had been impaired by the South African Schools Acts.93 The rights interpretation was not even
notional. It was non-existent.
The Christian Education Court did not have to undertake a less than notional approach to
rights analysis — especially with respect to FC s 31. FC s 31(2) affords the party seeking to
uphold the law or the conduct in question an opportunity to demonstrate that the conduct for
which constitutional protection is sought is inconsistent with the other provisions in the Bill of
Rights. Given that the Christian Education Court relied directly upon a constellation of rights —
dignity, equality, and freedom and security of the person — in upholding the limitation of FC s 31
in terms of FC s 36, it is difficult to understand why those same rights were not deployed by the
Court in terms of FC s 31(2). The only compelling explanation for the failure to undertake FC s
31(2) analysis is that the Court would have been required, in terms of FC s 15, to undertake FC s
36 analysis anyway. Of this reconstruction, two things must be said. First, the necessity of
undertaking FC s 36 analysis does not obviate the need to undertake rights analysis. Second,
the presence of an internal limitation in the form of FC s 31(2) does not mean that the mere
assertion of a conflict with another right in Chapter 2 automatically serves to trump FC s 31. As
one of the authors has written elsewhere, dignity interests may inform both the assertion of a
91 Ibid at para 24.
92 The lone dissenter in NNP and DP, O'Regan J, charts a rather different and undesirable course in her
fundamental rights analysis of the franchise. For reasons that are not entirely clear, she imports a
reasonableness test for the government electoral scheme 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 judicial
restraint would seem to argue against the creation of internal limitation tests where the text is silent. Secondly,
the very test itself is taken almost verbatim from the limitation test devised by the court to reflect the requirements
of FC s 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 the Justice in these two judgments engages in no rights analysis at all, but instead begins
and ends with limitations analysis. The ostensible justification for standing the Bill of Rights on its head is that
this particular right by necessity demands that Parliament pass legislation which contemplates regulations
designed to ensure the right's proper exercise by the citizenry. But this is no answer at all. Of course, Parliament
must pass laws to make the exercise of the franchise possible. The question is whether or not rules regarding
'the date of the election, the location of polling booths, the hours of voting and the determination of which
documents prospective voters will require in order to register and vote' actually impair a voter's right to exercise
the franchise. NNP (supra) at para 142. If any one of them does, then the question should be whether such
impairment can be saved under FC s 36. Thus, the Justice could well have found an infringement of the right to
vote, and then decided under the limitation clause that the means employed and ends sought were reasonable
and justifiable.
One might wish to compare O'Regan J's judgments in South African National Defence Union v Minister of
Defence & Another 1999 (4) SA 469 (CC), 1999 (6) BCLR 615 (CC)('SANDU') with her judgments in NNP and
DP. In SANDU O'Regan J spent a significant amount of space attempting to determine the ambit of FC s 23,
whether the soldiers 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 under scrutiny did indeed infringe the soldiers' FC s 23(2)(a) right 'to form and join a trade
union'. The Justice then moved on to FC s 36 and rejected the Minister's contention that an infringement of the
right was justified by the constitutional imperative to structure and manage the SANDF as a 'disciplined military
force'. That O'Regan J is aware of a better approach to rights interpretation and limitations analysis is made
manifest in the text. After rejecting overbreadth as a constitutional doctrine appropriate to the resolution of this
challenge, she writes:
The first question to be asked is whether the provision in question infringes the rights protected by the
substantive clauses of the Bill of Rights. If it does, the next question that arises will be whether that infringement
is justifiable. At the second stage of the constitutional enquiry, the relevant questions are: what is the purpose of
the impugned provision, what is its effect on constitutional rights and is the provision well tailored to that
purpose?
Ibid at para 18.
93 2000 (4) SA 757 (CC), 2000 (4) BCLR 1051 (CC)('Christian Education'). See also Prince v President of the
Law Society of the Cape of Good Hope 2001 (2) SA 388 (CC), 2001 (2) BCLR 133 (CC)('Prince').
right in terms of FC s 31(1) and the defence of the challenged law or conduct in terms of FC s
31(2).94 The Court must still apply its mind as to whether the right, appropriately understood,
protects the religious, cultural or linguistic practice under scrutiny.
OS 07-06, ch34-p30
34.4 Internal modifiers, and their relationship to rights analysis and
limitations analysis
In a world of tersely worded fundamental rights and a general limitation clause we would always
proceed in the same way. First, we would make value-based determinations of a right's scope
and then assess whether the law or the conduct challenged impaired the exercise of the right;
second, if we found that a law had impaired the right in question, we would ask whether that law
could be justified in terms of FC s 36. Unfortunately, the Bill of Rights of the Final Constitution is
not such a world. Many of the rights it contains possess complex qualifications.95 The immediate
question is whether these differences in construction alter significantly the form of constitutional
analysis that these rights receive.96
For the purposes of this chapter, it is probably sufficient to note that fundamental rights take
three basic forms: (1) unqualified rights; (2) rights that contain internal modifiers; (3) rights that
contain internal limitations. A remarkably small number — four — of the 27 rights enshrined in
Chapter 2 are unqualified.97 A significant number of rights — sixteen — contain internal
modifiers. Internal modifiers are, in short, words or phrases that serve to determine, with greater
specificity, the content of the right in question. For example, the phrase 'peaceful and unarmed'
clarifies the kinds of assembly that FC s 17 protects.98 FC s 16,
OS 07-06, ch34-p31
freedom of expression, contains two forms of internal modifier. While FC s 16(1) recognizes
several types of expressive activity that secure constitutional protection, FC s 16(2) identifies
several forms of expressive conduct that ought not to receive such protection: (a) propaganda for
war; (b) incitement of imminent violence; and (c) advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes incitement to cause harm.99 The rights to dignity,
freedom and security of the person, privacy, expression, political rights, freedom of residence
94 See Stu Woolman 'Dignity' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS, December 2005) Chapter 36.
95 The Technical Committee on Fundamental Rights (for the Interim Constitution) suggests that this system of
internal modifiers, internal limitations, and general limitations was on the cards from the outset. See Technical
Committee on Fundamental Rights 'Third Report' (28 May 1993) 9.
96 For early attempts to explain the relationship between internal modifiers, internal limitations and a general
limitations clause, see Gretchen Carpenter 'Internal Modifiers and Other Qualifications in Bills of Rights: Some
Problems of Interpretation' (1995) 10 SA Public Law 260; André van der Walt The Constitutional Property Clause
(1997) 73–74; Stu Woolman 'Riding the Push-Me Pull-You: Constructing a Test that Reconciles the Conflicting
Interests which Animate the Limitations Clause' (1994) 10 SAJHR 60.
Some authors offer no account of internal modifiers at all. See IM Rautenbach & EFJ Malherbe
Constitutional Law (3rd Edition, 2000). Other authors correctly note that internal modifiers or 'demarcations'
'circumscribe the right or place certain conditions on its availability', whereas 'special limitations' require the 'state
or the person relying on the validity of legislation ... [to] show that the limitation of the right is justified'. Iain Currie
& Johan De Waal The Bill of Rights Handbook (5th Edition, 2005) 187. But Currie and De Waal make no effort to
spell out the relationship between rights analysis, internal modifiers, internal limitations and general limitations.
More curious, however, is the claim that 'it is wrong to talk about internal limitations'. Halton Cheadle 'Limitations
of Rights' in H Cheadle, D Davis & N Haysom (eds) South African Constitutional Law: The Bill of Rights (2002)
701. Cheadle then goes on to state the term is 'shorthand for a group of clauses that perform different functions
in the different rights, particularly in the more complex rights' and that 'the text always limits the scope of a right'.
Ibid. While trivially true, this does not count as an argument except in the sense of the classic Monty Python
riposte of 'Yes, it is an argument' to the assertion 'No, it's not an argument'. Cheadle makes no attempt to explain
what these different clauses actually do.
97 Four rights may be described as unqualified: Life, FC s 11, reads: 'Everyone has the right to life'; Slavery,
Servitude and Forced Labour, FC s 13, reads: 'No one may be subjected to slavery, servitude or forced labour';
Freedom of association, FC s 18, reads: 'Everyone has the right to freedom of association'; Citizenship, FC s 20,
reads: 'No citizen may be deprived of citizenship.'
98 See Stu Woolman 'Freedom of Assembly' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M
Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, February 2005) Chapter 43.
and movement, labour relations, environment, property, children, education, just administrative
action, access to information, access to courts and arrested, detained and accused persons all
contain words or phrases intended to amplify the content of the right. The rights to equality,
expression, education, housing, health care and arrested, detained and accused persons all
contain words or phrases intended to exclude expressly certain types of conduct, status or law
from constitutional protection.100
But whether the phrases in these rights amplify or exclude, the internal modifier analysis fits
naturally within fundamental rights, or stage 1, analysis. The internal modifier is concerned with a
determination of the content of the right and not with an analysis of competing rights or
interests.101 At least one consequence of identifying a phrase as an internal modifier is that the
burden of justification remains upon the party bringing the challenge to demonstrate that the law
or the conduct in question impairs the exercise of the 'modified' right.
34.5 Internal limitations, and their relationship to rights analysis and
limitations analysis
While internal modifiers concern themselves primarily with the content of a right, internal
limitations import a variety of considerations not normally associated with fundamental rights, or
stage 1, analysis. The language of FC ss 9(3), 15(3), 24(b), 25(2), 25(3), 25(5), 26(2), 27(2),
29(1)(b), 29(2), 30, 31(2) and 32(2) require forms of justification generally associated with
limitations analysis and the comparison of competing constitutional imperatives.
OS 07-06, ch34-p32
The most commonly employed internal limitation is the unfair discrimination analysis found
within the Harksen test.102 The unfairness assessment required by FC s 9(3) takes into account
justifications for discriminatory practices at the same time as it requires the court to take
cognizance of systemic discrimination and the impairment of the plaintiff's dignity.
FC ss 26(2) and 27(2) require the court to assess whether the state — or some other party —
has taken reasonable steps to ensure the progressive realization of the rights to access to
adequate housing, health, food, water and social security. The focus of this inquiry — as laid out
in Grootboom and other socio-economic rights cases — is generally on whether the state has
created and implemented a comprehensive and coordinated plan to realize progressively the
right in question. The primary desideratum of this test is 'reasonableness'. Reasonableness in
FC ss 26(2) and 27(2) raises many of the same contextual considerations that would otherwise
99 See Dario Milo, Glenn Penfold & Anthony Stein 'Freedom of Expression' in S Woolman, T Roux, J Klaaren, A
Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, June 2008) Chapter
42.
100 The kernel of truth in Cheadle's statement that 'it is wrong to talk about internal limitations' is that it may appear
difficult to fit the various rights — with their respective modifiers and limitations — into a simple yet powerful
explanatory framework. For example, FC s 9(2), the provision for restitutionary measures, is an affirmative
defence that carves out of FC s 9 space for inegalitarian measures that pursue egalitarian ends. FC s 9(2) does
not expressly modify FC s 9(1) or FC s 9(3) or FC s 9(4), but it does so just the same. However, FC 9 as a whole,
like FC ss 26 and 27, does not fit easily into the two-stage model of fundamental rights analysis. See Cathi
Albertyn & Janet Kentridge 'Introducing the Right to Equality in the Interim Constitution' (1994) 10 SAJHR 149,
177 (Adopt an assimilationist approach with respect to the treatment of the restitutionary measures provision as
an internal modifier that assists in the demarcation of the right to equality.)
101 Cf Halton Cheadle 'Limitations of Rights' in H Cheadle, D Davis & N Haysom (eds) South African
Constitutional Law: The Bill of Rights (2002) 701 (Claims, without argument, that the ambit of the right should be
determined, at least in part, by social interests that have nothing to do with the purpose or the objective of the
right.)
102 For more on the Harksen test, see Stu Woolman 'Dignity' in S Woolman, T Roux, J Klaaren, A Stein, M
Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, December 2005) Chapter 36;
Cathi Albertyn & Beth Goldblatt 'Equality' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop
(eds) Constitutional Law of South Africa (2nd Edition, OS, March 2007) Chapter 35.
be the focus of the FC s 36 inquiry.103 Similar language, that appears to do similar work, appears
in FC s 29(1) and (2).104
Other internal limitations take a somewhat different form. FC ss 15(3)(b), 30 and 31(2) require
that the exercise of the right in question be consistent with the other rights in Chapter 2. In short,
the Final Constitution makes it clear that a community's religious, cultural or linguistic practices
enjoy constitutional protection only where they do not interfere with — limit — the exercise of
other fundamental rights.105 This formally correct articulation of the relationship between FC s 31
and the rest of the Bill of Rights is often assumed to imply that the other substantive rights —
including dignity — trump collective religious, cultural and linguistic concerns. That, however, is
untrue. Indeed, rights to dignity and to equality may re-inforce claims to religious autonomy. For
example, the Constitutional Court in Gauteng School Education Bill recognized the importance
for
OS 07-06, ch34-p33
individual dignity, and collective claims for equal respect, of granting communities the right to
create schools based upon a common culture, language or religion.106
(a) Internal limitations and burden shifts
Where an internal limitation is in play there may appear to be a burden shift within the
fundamental rights stage of analysis that requires the state or another party to make the requisite
demonstration of 'fairness', 'reasonableness' or 'consistency'. But the case law does not support
such a global generalization. FC s 9(5) definitely requires a burden shift where discrimination
occurs on a prohibited ground in terms of FC s 9(3). It does not, however, appear clear that the
state or some other party bears the burden of demonstrating inconsistency in terms of FC ss
15(3)(b), 30, and 31. Nor is it clear that the burden falls, entirely or even in large part, on the state
to show that it has taken reasonable steps to discharge its responsibilities to progressively
realize the socio-economic rights found in FC s 26, 27, and 29.107 The more interesting analytical
question is whether an internal limitation affects the analysis undertaken under the general
limitations clause, FC s 36.
(b) Internal limitations and general limitations
What, if any, analysis will remain for the court to do after undertaking some form of internal
limitations analysis will turn on the particular kind of internal limitation at issue.
(i) Internal limitations in FC ss 15(3)(b), 30 and 31
With respect to FC ss 15(3)(b), 30, and 31, the courts often appear to ignore the internal
limitation entirely. In Christian Education South Africa v Minister of Education, the Constitutional
103 For more on internal modifiers and internal limitations and their effect on the interpretation of socio-economic
rights, see Sandra Liebenberg 'The Interpretation of Socio-Economic Rights' in S Woolman, T Roux, J Klaaren, A
Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, December 2003)
Chapter 33. See also Pierre de Vos 'Pious Wishes or Directly Enforceable Human Rights: Social and Economic
Rights in South Africa's 1996 Constitution' (1997) 13 SAJHR 6, 91 n 97 (Argues that the distinction between
internal modifiers and internal limitations does not hold for socio-economic rights.)
104 With regard to the provision of further education, FC s 29(1)(b) contains the phrase, 'through reasonable
measures, must make progressively available and accessible,' while FC s 29(2) states that education in the
official language of choice ought to be offered 'where that education is reasonably practicable.'
105 FC s 31(2) could be construed to preclude all exclusionary and discriminatory policies. But that assumes that
all such practices are inconsistent with various provisions in the Bill of Rights, in particular, the rights to equality
and dignity. The Constitutional Court has made it quite clear that not all discrimination is unfair discrimination.
See, eg, Pretoria City Council v Walker 1998 (2) SA 363 (CC), 1998 (3) BCLR 257 (CC).
106 Ex Parte Gauteng Provincial Legislature: In Re Dispute Concerning the Constitutionality of Certain Provisions
of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC), 1996 (4) BCLR 537 (CC)(Court held that IC
s 32(c) permitted communities to create schools based upon common culture, language and religion.)
107 See Government of the Republic of South Africa & Another v Grootboom & Others 2001 (1) SA 46 (CC), 2001
(9) BCLR 883 (CC)('Grootboom'). By collapsing FC s 26 (1) and FC s 26(2) analysis (and perhaps FC s 36
analysis) into a single test for reasonableness — the Grootboom Court effectively turns FC s 26(2) into an odd
composite of internal modifier and internal limitation of FC s 26(1). For more on the relationship between FC s
26(1) and (2), see Kirsty McLean 'Housing' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M
Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, July 2006) Chapter 55.
Court simply assumed — without needing to do so — that the exercise of FC ss 15 and 31 had
been impaired by the South African Schools Act. It then proceeded to FC s 36 and found that, on
balance, the mutually reinforcing rights of religion and culture said to sanction corporal
punishment in private schools were in conflict with, and ultimately subordinate to, a constellation
of rights that included dignity, equality, and freedom and security of the person.108
OS 07-06, ch34-p34
There are two things to say about Christian Education and the Court's apparent failure to
recognize the purpose of FC s 31(2). First, it could just have been a mistake. Second, it is
possible that a right to community religious practice could (a) be deemed consistent with the
other rights in Chapter 2 and (b) still be impaired by the law in question. If this second possibility
is the correct one, then the analysis would proceed to FC s 36, and the party relying upon the
law would have the opportunity to demonstrate that another set of interests or values — not
expressly manifest in the rights and freedoms of Chapter 2 — justified the infringement of FC s
31(1).
(ii) Internal limitations in FC ss 9, 26 and 27
More interesting, and difficult, questions regarding internal limitations flow from the text of, and
the case law surrounding, FC ss 9, 26, and 27. With respect to these provisions, the text and the
case law are quite illuminating.
Although the courts have been loath to state categorically that a finding of unfairness under
FC s 9(3) ends the court's analysis, in not a single Constitutional Court equality judgment has
the Court found that unfair conduct or an unfair law — in terms of FC s 9(3) or FC s 9(4) — can
be justified in terms of FC s 36. The Constitutional Court often goes through the motions of FC s
36 analysis, but, as in Kabuki theatre, says nothing. The reason for this artifice is rather clear: the
considerations that would be raised to demonstrate fairness under FC s 9(3) would be virtually
identical to the considerations raised to demonstrate reasonableness and justifiability under FC s
36.109 The only judgment on record in which a court has found unfairness in terms of FC s 9(3),
but then held the unfair law to be reasonable and justifiable in terms of FC s 36 is Lotus River,
Ottery, Grassy Park Residents Association v South Peninsula Municipality.110 In Lotus River, the
High Court found that the differential rates imposed by the municipality upon properties
constituted unfair discrimination on the grounds of race. However, Davis J proceeded to find that
this unfair discrimination was justified, in terms of FC s 36, by the local government restructuring
process. As Iain Currie rightly observes, this justification ought to have formed part of the
argument in rebuttal of the presumptive finding of unfair discrimination.111 Given that the Harksen
test does permit such an argument, the High Court could easily have avoided the
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'awkward implication' that 'it is possible for unfair racial discrimination to be reasonable and
justifiable in a society based upon equality.'112
In its early socio-economic rights jurisprudence the Constitutional Court simply assumed,
without any discussion, that a finding that the state failed to take reasonable measures within its
available resources to achieve the progressive realization of the rights in question, precluded a
finding that the limitation was, nevertheless, reasonable and justifiable in terms of FC s 36. Once
108 2000 (4) SA 757 (CC), 2000 (4) BCLR 1051 (CC)('Christian Education'). See also Prince v President of the
Law Society of the Cape of Good Hope 2001 (2) SA 388 (CC), 2001 (2) BCLR 133 (CC).
109 The Constitutional Court has stated that there is a difference between unfairness under FC s 9 and
proportionality under FC s 36. See President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC), 1997 (6)
BCLR 708 (CC)(Kriegler J, dissenting); Harksen v Lane 1998 (1) SA 300 (CC), 1997 (11) BCLR 1489 (CC)(Court
holds that FC s 36 'involves a weighing of the purpose and the effect of the provision in question and a
determination as to the proportionality thereof in relation to the extent of the infringement of equality.') But as Iain
Currie notes, the Court's cursory remarks in this regard do not advance our thinking on the matter. See Currie &
De Waal 'Equality' (supra) at 238. Merely stating that there is a difference between the two concepts is not the
same as using them in a different manner.
110 1999 (2) SA 817 (C), 1999 (4) BCLR 440 (C)('Lotus River').
111 See Currie & De Waal 'Equality' (supra) at 239.
112 Currie & De Waal 'Equality' (supra) at 239.
it found that the state had failed to meet its obligations in terms of FC s 26(2) or FC s 27(2), the
Court proceeded directly to a consideration of appropriate relief, without any inquiry into FC s
36.113
The Constitutional Court broke its silence on the relationship between FC ss 26 and 27 and
FC s 36 in Khosa114 and Jaftha.115 In Jaftha, the Court distinguished between the negative and
positive obligations imposed by FC ss 26 and 27. It held that its earlier ruling in TAC — that FC s
27(1) 'does not give rise to a self-standing and independent positive right enforceable
irrespective of the considerations mentioned in section 27(2)' — did not extend to negative
breaches of FC ss 26 and 27.116 Where the state fails to honour its negative obligations under
these rights — as in Jaftha, where a provision in the Magistrates' Court Act permitted the sale in
execution of a person's home for non-payment of debts — there is no reason for the Court to
filter its analysis of FC s 26(1) through FC s 26(2). Consequently, the question of the relationship
between FC s 26(2) reasonableness and FC s 36 reasonableness does not arise, and the
breach of FC s 26(1) may be justified under FC s 36.117 As it turned out, the Jaftha Court found
that the breach of FC s 26(1) was not reasonable and justifiable in terms of FC s 36, given the
importance of access to adequate housing, its link to human dignity, the seriousness of
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the infringement, the existence of less restrictive means, and that the sale in execution satisfied
a trifling debt.118
While Jaftha is clear that a breach of the state's negative obligation under FC s 26(1) leaves
ample room for a consideration of the justifiability of such a breach in terms of FC s 36, Khosa
raises doubts as to whether FC s 36 analysis can play a meaningful role in cases concerning a
breach of the state's positive obligations under FC s 27(2). In Khosa, the Court found that the
Social Assistance Act's exclusion of permanent residents from its benefit scheme constituted
unfair discrimination in terms of FC s 9 and an unjustifiable limitation of the right of access to
social security in terms of FC s 27. In her discussion of the relationship between FC s 9 and FC s
36, Justice Mokgoro first noted that the
exclusion of permanent residents from the scheme is discriminatory and unfair and I am satisfied
that this unfairness would not be justifiable under section 36 of the Constitution. The relevant
considerations have been traversed above and need not be repeated. What is of particular
importance in my view, however, and can be stressed again, is that the exclusion of permanent
residents from the scheme is likely to have a severe impact on the dignity of the persons concerned,
who, unable to sustain themselves, have to turn to others to enable them to meet the necessities of
life and are thus cast in the role of supplicants.119
113 See, eg, Grootboom (supra); Minister of Health & Others v Treatment Action Campaign & Others No 2 2002 (5)
SA 721 (CC), 2002 (10) BCLR 1033 (CC)('TAC'). Similarly, no limitation analysis was undertaken in cases in
which it was found that administrative action failed the justifiability test in terms of IC s 24 or the reasonableness
test under FC s 33. But see Bel Porto School Governing Body & Others v Premier of the Province, Western Cape
& Another 2002 (3) SA 265 (CC), 2002 (9) BCLR 891 (CC) at para 171 (Mokgoro and Sachs JJ note in dissent
that justifiability for purposes of limitation analysis generally requires more persuasive evidence than that
required for FC s 33.) See also Masamba v Chairperson, Western Cape Regional Committee, Immigrants
Selection Board & Others 2001 (12) BCLR 1239, 1258D-E, 1259A-C (C). Rautenbach argues that the
requirements of FC s 33 should, as far as possible, be reconciled with the requirements of FC s 36. In his view,
'section 33 particularises the rules in section 36 in respect of administrative actions that limit rights.' See IM
Rautenbach 'The Limitation of Rights and "Reasonableness" in the Right to Just Administrative Action and the
Rights to Access to Adequate Housing, Health Services and Social Security' (2005) TSAR 627, 641. But for
Rautenbach to be correct, the Court must be willing to enforce a stricter standard of review for administrative
action.
114 Khosa & Others v Minister of Social Development; Mahlaule & Others v Minister of Social Development &
Others 2004 (6) SA 505 (CC), 2004 (6) BCLR 569 (CC)('Khosa').
115 Jaftha v Schoeman & Others 2005 (2) SA 140 (CC), 2005 (1) BCLR 78 (CC)('Jaftha').
116 TAC (supra) at para 39, as quoted in Jaftha (supra) at para 32.
117 Jaftha (supra) at paras 32–33. See also Marius Pieterse 'Towards a Useful Role for Section 36 of the
Constitution in Social Rights Cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council'
(2003) 120 SALJ 41.
118 Jaftha (supra) paras 35–49.
119 Khosa (supra) at para 80.
In short, the very same considerations that informed the finding of unfairness under FC s 9
supported the finding, under FC s 36, that the statutory scheme contemplated by the Social
Assistance Act could not be justified. No reasons that might justify the discrimination could be
offered in the context of FC s 36 that had not already been offered under FC s 9.
Mokgoro J then moved on to the question of justification, in terms of FC s 36, with respect to
the abridgement of FC s 27, and, more particularly, the state's failure to discharge its
responsibilities under FC s 27(2). Once again, she concluded that there was no reason for the
Court to repeat its assessment, in terms of FC s 36, of the arguments in justification that it had
already interrogated in terms of FC s 27(2):
In my view the importance of providing access to social assistance to all who live permanently in
South Africa and the impact upon life and dignity that a denial of such access has, far outweighs the
financial and immigration considerations on which the state relies. For the same reasons, I am
satisfied that the denial of access to social grants to permanent residents who, but for their
citizenship, would qualify for such assistance does not constitute a reasonable legislative measure
as contemplated by [FC s] 27(2).... There is a difficulty in applying section 36 of the Constitution to
the socio-economic rights entrenched in sections 26 and 27 of the Constitution. Sections 26 and 27
contain internal limitations which qualify the rights. The state's obligation in respect of these rights
goes no further than to take 'reasonable legislative and other measures within its available resources
to achieve the progressive realisation' of the rights. If a legislative measure taken by the state to
meet
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this obligation fails to pass the requirement of reasonableness for the purposes of sections 26 and
27, section 36 can only have relevance if what is 'reasonable' for the purposes of that section, is
different to what is 'reasonable' for the purposes of sections 26 and 27. This raises an issue which
has been the subject of academic debate but which has not as yet been considered by this Court.
We heard no argument on the matter and do not have the benefit of a judgment of the High Court. In
the circumstances, it is undesirable to express any opinion on the issue unless it is necessary to do
so for the purposes of the decision in this case. In my view it is not necessary to decide the issue.
Even if it is assumed that a different threshold of reasonableness is called for in sections 26 and 27
than is the case in section 36, I am satisfied for the reasons already given that the exclusion of
permanent residents from the scheme for social assistance is neither reasonable nor justifiable
within the meaning of section 36.120
Mokgoro J does not, as she makes plain, seek to settle the academic debate over whether the
proportionality analysis required by FC s 36 could serve any meaningful role once a court has
undertaken reasonableness analysis in terms of FC ss 26(2) and 27(2). It is sufficient to note,
however, that in so far as the instant matter is concerned, the content of the reasonableness
analysis undertaken under FC s 27(2) is understood to be identical to the content of the
reasonableness analysis that would be undertaken in terms of FC s 36.121
120 Khosa (supra) at paras 82–84.
121 That this issue — heretofore purely academic — had troubled the Court in its internal deliberations is clear
from both Mokgoro J's musings and the response they elicit from Ngcobo J. On the relationship between FC s
27(2) and FC s 36, Ngcobo J writes:
But if section 27 governs the present constitutional challenge, the problem of a methodological approach arises.
The obligations of the state under section 27(2) are limited to taking "reasonable legislative and other measures."
The main judgment regards this as an internal limitation on the right of access to social security. I agree. But is it
possible to find that a measure is reasonable within the meaning of subsection 2 yet not reasonable and
justifiable under section 36(1), the limitation clause? Let us take a non-controversial group, the temporary
visitors, which the main judgment also accepts can legitimately be excluded from the social welfare benefits. If
their exclusion would be reasonable under section 27(2), is the state required to show also that their exclusion is
reasonable and justifiable under section 36(1)? This raises a number of related questions, including, whether the
standard for determining reasonableness under section 27(2) is the same as the standard for determining
reasonableness and justifiability under section 36(1) and, if not, what is the appropriate standard for determining
reasonableness under section 27(2).... Faced with these questions, the main judgment adopts the attitude that
the outcome would be the same whether the enquiry is to be conducted under section 27(2) or section 36(1). I
prefer to approach the matter differently — by looking first to the enquiry required in section 27 and then, if
necessary, to section 36. I should add, though, that the outcome would be the same even if the enquiry were to
begin and end in section 27(2).
Ibid at paras 105–07. It is hard to understand Ngcobo J's disagreement with the majority. He correctly identifies
the problem: namely, is there a difference in the standard of review under FC s 27(2) and FC s 36? But he does
not answer the question. He simply says that he would prefer to do things differently: that is, he would first
undertake analysis under FC s 27 and then, if he so desired, proceed to FC s 36. Why he prefers this approach,
Ngcobo J does not say. Moreover, he concludes by noting that 'the outcome would be the same even if the
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The problem the Court acknowledges in Khosa — vis-à-vis FC s 26 and FC s 27 and FC s 36
— is, at bottom, a straightforward question of logic. Does the universe of reasons — or kinds of
reasons — that the state can offer in justification under FC s 27(2) exhaust the universe of
reasons — or kinds of reasons — that could be offered in justification under FC s 36? If the
answer to that question is yes, then logically there can be no meaningful basis for a court to
undertake limitations analysis under FC s 36 once it has concluded that the state has failed to
act reasonably in terms of FC s 27(2). If, however, the answer to that question is no, then there
may be some basis, for undertaking a second form of justificatory analysis under FC s 36.
The answer is not grounded solely in logic, however. It turns, in large measure, on the
standard(s) adopted by our Constitutional Court in socio-economic rights cases, and more
specifically, those cases in which the state has failed to take adequate measures to realize
progressively the right in question. For example, if the standard for review was that of mere
rationality — as suggested by some of the language in Soobramoney — it would, logically, be
impossible for FC s 36 to play any meaningful role in the Court's analysis. Put differently, if all FC
s 27(2) required the state to do was to show that it had applied its mind to the progressive
realization of a socio-economic right, and had done so to the satisfaction of the Court, the matter
would end there. There could be no reason — in the sense of necessity — for the Court to
progress to proportionality analysis under FC s 36.
But as we now know, the standard of review under FC ss 26(2) and 27(2) is not rationality but
reasonableness. After Soobramoney, Grootboom, TAC and Khosa, the question must be
whether there are types of reasons — beyond those currently contemplated in those four
judgments — that the state (or some other party) could raise under FC s 36 that it could not raise
under FC s 26(2) or FC s 27(2). Given that the state may justify its failure to make good on the
promise of a socio-economic right in terms of a whole host of 'reasonable' grounds, it is difficult
to conjure up any additional grounds that might justify the failure to make good a promise in
terms of FC s 36.122 Consider the long list of grounds that the Constitutional Court has already
identified when undertaking analysis under FC ss 26(2) and 27(2) (and keep in mind that such a
list is by no means exhaustive or closed):123
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whether there are available resources;124
whether the requested relief is not for an individual entitlement to the immediate provision
of a service or resource, but for a comprehensive and coordinated plan to realize the
right;125
whether the state has taken steps towards the right's progressive realization;126
whether the relief requested involves access to services, and not to the resources
necessary to possess what the right promises;127
whether 'the appropriate ... human resources are available';128
enquiry were to begin and end in section 27(2).' Ngcobo J is either committed to the proposition that his
distinction between FC s 27(2) and FC s 36 is a distinction without a difference, or that there is a difference in the
standard, which he refuses to describe, that leads, coincidentally, in this case and perhaps all others, to the
same outcome. Ngcobo J's analysis takes us nowhere.
122 See Rautenbach (supra) at 647–653 (Constitutional Court has incorporated, in its analysis of reasonableness
under FC s 26(2) and FC s 27(2), FC s 36 criteria such as the importance of the purpose of the restriction, the
nature and extent of the deprivation, the relationship between ends and means, the existence of less restrictive
means, and cost/benefit analysis.)
123 See Khosa (supra) at para 43 ('In determining reasonableness, context is all-important. There is no closed list
of factors involved in the reasonableness enquiry and the relevance of various factors will be determined on a
case by case basis depending on the particular facts and circumstances in question.')
124 See Soobramoney v Minister of Health, Kwazulu-Natal 1998 (1) SA 765 (CC), 1997 (12) BCLR 1969 (CC)
('Soobramoney') at paras 10, 20 and 22.
125 See Soobramoney (supra) at para 31; Grootboom (supra) at paras 38, 78, 99; TAC (supra) at paras 81.
126 See Soobramoney (supra) at paras 13, 19, 21 and 41.
127 Van Biljon v Minister of Correctional Services 1997(6) BCLR 789 (C), 1997(4) SA 441 (C), 497('Van Biljon').
128 Grootboom (supra) at paras 39–46.
whether the state's plan is 'capable of facilitating the realisation of the right';129
whether the plan is reasonable 'both in its conception and its implementation';130
whether the plan is sufficiently flexible;131
whether the plan attends to 'crises';132
whether the state's plan excludes 'a significant segment' of the affected population;133
whether the state's plan balances short, medium and long-term needs;134 and
whether the party could form a legitimate expectation of receiving a socio-economic
entitlement.135
Is there any reason to think that there may be grounds for justification that the state could assert
under FC s 36 that are not available to it under FC s 26(2) or FC s 27(2)? In the cases decided to
date, ending in Khosa, the answer would appear to be 'no'.
But before we shut the door on what is, apparently, no longer an academic debate, consider
the textual differences between FC s 27(2), on the one hand, and FC s 36, on the other. FC s 27
reads, in pertinent part, as follows:
(1) Everyone has the right to have access to —
(a) ....
(c) social security, including, if they are unable to support themselves and their dependants,
appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within its available resources,
to achieve the progressive realisation of each of these rights. (emphasis added)
OS 07-06, ch34-p40
FC s 36 reads, in pertinent part, as follows:
(1) 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 —
(a) . . .
(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. (emphasis added)
The language of FC ss 27(2) and 36, on their face, intimate that there are, in fact, different kinds
or sources of justification. In FC s 27(2), the reasons for failure to make good the promise of a
socio-economic right would seem, at first blush, related to the right itself or the resources that
would be required to give effect to the right. For example, either the state may not possess
sufficient resources to give everyone with terminal renal failure the dialysis treatment that would
extend his or her life, or the state may not be required to distribute a requested form of relief
because the right, upon reflection, is not meant to embrace a particular form of entitlement. In
FC s 36(1), the failure to make good the promise of a given right may have nothing whatsoever
to do with the right itself. For example, the grounds for restricting the expressive activity of a
person may have nothing at all to do with advancing freedom of expression: we restrict
defamatory statements because of the damage we believe is done to the dignity of the persons
affected by such conduct.136 Thus, whereas FC s 27(2) appears to limit our considerations to
those justifications related to the means required to realize the purpose of the right (eg, money)
or the end of the right itself (eg, social security), FC s 36 tells us that we may cast our
129 Ibid at para 52.
130 Ibid at para 53.
131 Ibid at paras 63–69.
132 Ibid at para 74.
133 Ibid at para 83.
134 Ibid at paras 39–46, 52, 53, 63–69, 74 and 83.
135 Van Biljon (supra) at 497.
136 See Khumalo v Holomisa 2002 (5) SA 401 (CC), 2002 (8) BCLR 771 (CC).
justificatory nets as far as the needs of an open and democratic society based on human dignity,
equality and freedom will allow. In short, under FC s 36, our reasons for restricting access to
social security can take account of a range of goods wholly unrelated to that right: dignity, life,
privacy, freedom and security of the person, or any of the other rights found in Chapter 2. Our
reasons for restricting rights may not, in fact, have anything to do with the other rights found in
Chapter 2. In Prince, the grounds for restricting the religious ritual use of cannabis by
Rastafarians was the general welfare, and perhaps more specifically, the safety of the
commonweal.137 Thus, although the Court has not as yet made such a distinction grounded in the
very text of FC ss 27 and 36, one is on offer.138
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But as we have already noted, arguments about the nature or the source of justification are
as much empirical — a fact about constitutional adjudication in South Africa — as they are
logical and textual. A close reading of the socio-economic rights judgments handed down by the
Constitutional Court does not suggest that the Court is likely to place constraints on its FC ss
26(2) and 27(2) 'reasonableness' analysis in the service of creating a meaningful allocation of
analytical responsibilities between FC ss 26(2) and 27(2), and FC s 36. Indeed, if the rather
circuitous route the Court took to avoid FC s 26 analysis in Modderklip offers any indication of
the Court's future direction, it is that the Court is unlikely to jettison the freedom that an open-
ended reasonableness standard — under FC ss 26(2) and 27(2) — offers in the name of such
an 'abstract' good as doctrinal coherence.139
(iii) Internal limitations in FC s 25 and the collapse of stage distinctions
Unlike FC ss 9, 15, 26, 27, 30 and 31, FC s 25 does not, on its face, appear to possess an
internal limitations clause. Indeed, FC s 25 does not contain an internal limitations clause distinct
from another clause that determines the ambit of the right.
137 See Prince (supra) at para 130 (The determination as to whether the scope of religious practice protected by
FC s 15 embraced the ritual use of cannabis by Rastafarians was wholly unrelated to any subsequent analysis of
the societal interests ostensibly threatened by such use.)
138 Kevin Iles has articulated a very similar, if not absolutely identical, distinction between the objects of the FC s
26(2) and FC s 27(2) reasonableness inquiry and the objects of the FC s 36 reasonableness enquiry. See Kevin
Iles 'Limiting Socio-Economic Rights: Beyond Internal Limitations Clauses' (2004) 20 SAJHR 448. With respect
to the Court's analysis in Grootboom, he writes:
With Grootboom ... the object of the reasonableness examination is the plan for the progressive realization of the
right. Grootboom reasonableness is concerned with such details as the following: how the content of the right is
going to be extended and when, the order in which the state plans to cater for those in need, the resources that
the state has allocated towards realizing its stated plan including the intergovernmental allocation of tasks and
responsibilities, the ultimate comprehensiveness of the plan and those it caters for and the way in which the state
seeks to implement the plan. Internal limitations clauses in socio-economic rights cases go to the content and
scope of the right they are associated with and define the boundaries as to how much of a particular right can be
claimed at a particular point in time. In other words, they are factors that belong at the first stage of the rights
interpretation process and not at the second stage.
Section 36 reasonableness is directed not at the plan for realizing rights (as Grootboom
reasonableness is) but at an examination of the reasonableness of measures that limit rights. Rights
are not limited by plans that are designed to give effect to them.... Grootboom reasonableness does
not involve choosing one value from a cluster of incommensurable values as [FC] s 36
reasonableness sometimes does. One is not engaging in a selection between a value furthered by a
right and a competing value the state seeks to advance by limiting the right. In fact, Grootboom
reasonableness does not involve a choice between things at all.
Ibid at 456. While Iles is correct — at a certain level of abstraction — about the distinction between the objects of
the two kinds of limitations clauses, it is not so clear that the Grootboom internal limitations analysis can be
hermetically sealed in the manner he suggests. In the first place, the introduction of 'available resources' and
situating policy choices regarding, say, the delivery of housing in the context of a larger government agenda and
budget already takes us into the land of competing values and incommensurability. In the second place, it is not
clear that Iles needed to make his claim as strong as he does. All he was required to do was demonstrate that
the set of reasons that might justify a failure to make good the promise of a right in terms of FC s 26(2) or FC s
27(2) is smaller than the set of reasons that might justify the infringement of a FC s 26 or FC s 27 right in terms
of FC s 36.
139 See President of the Republic of South Africa & Another v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC),
2005 (8) BCLR 786 (CC). The Constitutional Court could have addressed the claims brought before it in terms of
FC ss 25 and 26. But to do so would have raised thorny questions about the content of both FC s 25 and FC s
26, and technically challenging questions about the relationship between FC s 25, FC s 26(2) and FC s 36.
OS 07-06, ch34-p42
After FNB,140 as Theunis Roux argues in this volume,141 the Court's inquiry into arbitrariness in
its FC s 25(1) determinations — 'no law may permit arbitrary deprivation of property' — bears all
the hallmarks of an internal limitations test. Moreover, as Roux notes, the FNB Court did not just
turn 'arbitrariness' into a kind of internal limitations test. It also collapsed the Court's rights-stage
analysis and limitations-stage analysis into a single stage, similar to the approach followed in its
socio-economic rights jurisprudence. Our complaint, once again, is that the Court has
compromised the analytical rigour of the two-stage approach, and supplanted it with a rather
amorphous, if not entirely shapeless, one-stage inquiry into the justifiability of the state's
conduct.
34.6 Burden of justification142
During the first stage of analysis under the Bill of Rights, the applicant must establish that a
fundamental right has been infringed. That the applicant bears the burden at this first stage of
the analysis flows from the generally accepted rule that the person asserting a breach bears the
burden of legal justification.143 It is important to note, however, that the Constitutional Court's
objective theory of unconstitutionality144 and FC s 38's generous standing
OS 07-06, ch34-p43
140 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service & Another; First
National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC), 2002 (7) BCLR 702 (CC)
('FNB').
141 See Theunis Roux 'Property' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS, December 2003) Chapter 46, 46-2–46-3.
142 In the first edition of this work, 'burden of justification' was called 'burden of proof'. This nomenclature was
criticized by both the academy and the bar. The general critique was that the author had borrowed the term from
another area of law in which its meaning was well-established and quite different. Iain Currie — himself sensitive
to such criticism — has described the subject matter as 'showing' or 'burden of justification': as in, who must
show that the right has been infringed, and who must show that a limitation of a right is justified. See Iain Currie
& Johan De Waal (eds) The Bill of Rights Handbook (5th Edition, 2005) 166. 'Burden of justification' better
captures the meaning intended and we follow Professor Currie in employing it for the purposes of our discussion.
143 See Ferreira v Levin NO & Others; Vryenhoek & Others v Powell NO & Others 1996 (1) SA 984 (CC), 1996 (1)
BCLR 1 (CC)('Ferreira') at para 44 ('The task of interpreting ... 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 of infringement of a
particular right in question.')
144 In its most general form, the doctrine holds that a court's finding of invalidity with respect to a given law is not
contingent upon the parties before the court. See National Coalition for Gay and Lesbian Equality & Others v
Minister of Home Affairs & Others 2000 (2) SA 1 (CC), 2000 (1) BCLR 39 (CC) at paras 28–29 ('On the objective
theory of unconstitutionality adopted by this Court a litigant who has standing may properly rely on the objective
unconstitutionality of a statute for the relief sought, even though the right unconstitutionally infringed is not that of
the litigant in question but of some other person'); Member of the Executive Council for Development Planning
and Local Government, Gauteng v Democratic Party & Others 1998 (4) SA 1157 (CC), 1998 (7) BCLR 855 (CC)
at para 64 (In re-affirming its commitment to the objective theory of unconstitutionality, the Court wrote that 'the
practice that has been urged upon this Court carries with it the distinct danger that Courts may restrict their
enquiry into the constitutionality of an Act of Parliament and concentrate on the position of a particular litigant');
Ferreira (supra) at paras 26–28 ('The subjective positions in which parties to a dispute may find themselves
cannot have a bearing on the status of the provisions of a statute under attack. The Constitutional Court, or any
other competent Court for that matter, ought not to restrict its enquiry to the position of one of the parties to a
dispute in order to determine the validity of a law. The consequence of such a (subjective) approach would be to
recognise the validity of a statute in respect of one litigant, only to deny it to another. Besides resulting in a denial
of equal protection of the law, considerations of legal certainty, being a central consideration in a constitutional
state, militate against the adoption of the subjective approach.') The generous conditions for standing ensure that
the objective theory of unconstitutionality will continue to operate in practice — even if the Court refuses to
announce its position on the apparent desuetude of the doctrine. See, especially, Minister of Home Affairs v
Eisenberg & Associates: In re Eisenberg & Associates v Minister of Home Affairs & Others 2003 (5) SA 281 (CC),
2003 (8) BCLR 838 (CC)(Attorneys' firm which handled mainly immigration matters granted standing — in its own
interest and as interested member of the public — to mount constitutional challenge to immigration regulations
passed without requisite notice and comment. Although the regulations did not affect the firm's members directly,
the Court found that it had an interest in proper notice and comment procedures being followed. Said regulations
were found unconstitutional.) See also Shaik v Minister of Justice and Constitutional Development & Others 2004
(3) SA 599 (CC), 2004 (4) BCLR 333 (CC)(The analysis of the law in terms of the subjective position of the
parties 'is incorrect. It is inconsistent with the principle of objective constitutional invalidity enunciated by this
Court.... This principle is equally applicable under the 1996 Constitution.')
provisions145 do not require that the party before the court alleging that an infringement of a right
has occurred be the party who has suffered the infringement.
Assuming that a prima facie infringement of a right is established at the conclusion of this first
stage of analysis, the next question that arises is which party bears the burden of justification
under the limitations clause. (We can bracket vexed questions of whether justification can ever
meaningfully occur under FC s 36 with respect to unfair discrimination analysis in terms of FC s
9, deprivation of
OS 07-06, ch34-p44
property analysis in terms of FC s 25(1), or socio-economic rights analysis in terms of FC ss
26(2) and 27(2), having already dealt with them above.146) The Constitutional Court in
Makwanyane 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.'147 One
obvious ground for placing the burden of justification on the state where it seeks to uphold a law
that limits a right is that the state will often possess unique, if not privileged, access to the
information a court requires when attempting to determine whether a limitation is justified.148
145 FC s 38 reads, in relevant part: 'Anyone listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed or threatened ... The persons who may approach a
court are — (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act
in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d)
anyone acting in the public interest; and (e) an association acting in the interest of its members. See, eg, Port
Elizabeth Municipality v Prut NO & Another 1996 (4) SA 318 (E), 1996 (9) BCLR 1240 (E)(Interest referred to in
FC s 38(a) need not relate to a constitutional right of the applicant, but may relate to a constitutional right of some
other person); Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council & Others
2002 (6) SA 66 (T), 2003 (1) BCLR 72 (T) at para 27 (Applicant association instituted proceedings on behalf of
the residents of a township, in the public interest and in the interest of its members deemed to have established
locus standi in terms of FC s 38(b), since it was evident that the people affected by the alleged unlawful action
were indigent and therefore unable individually to pursue their claims); Permanent Secretary, Department of
Welfare, Eastern Cape Provincial Government v Ngxuza 2001 (4) SA 1184 (SCA), 2001 (10) BCLR 1039 (SCA)
(Applicants had standing, in terms of FC s 38(c), to bring an application on behalf of a large class of persons
whose social grants had been cancelled by welfare authorities in a manner that violated requirements of
procedural fairness); Van Rooyen & Others v The State & Others 2001 (4) SA 396, 424H (T), 2001 (9) BCLR 995
(T)(Magistrate and the Association of Regional Magistrates of South Africa had locus standi in terms of FC s
38(d) to attack the validity of legislation which allegedly undermined independence of the magistrates' courts as
guaranteed by the Final Constitution); South African Association of Personal Injury Lawyers v Heath & Others
2001 (1) SA 883 (CC), 2001 (1) BCLR 77 (CC)(FC s 38(e) enabled applicant association to challenge the
constitutionality of search and seizure provisions that threatened to infringe the constitutional rights of its
members); Campus Law Clinic (University of KZN Durban) v Standard Bank of SA Ltd & Another 2006 (6) SA
103 (CC), 2006 (6) BCLR 669 (CC)(Law clinic has standing to appeal a decision of the SCA, to which it was not a
party, concerning the execution of mortgaged property in the High Court.) The case law suggests a strong
correlation between the objective theory of unconstitutionality and standing. See De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division, & Others 2002 (6) SA 370 (W), 2002 (12) BCLR 1285 (W)(Applicant
who had been charged, and might be convicted, in terms of a statutory provision had a direct interest in
challenging the validity of that provision); National and Overseas Modular Construction (Pty) Ltd v Tender Board,
Free State Provincial Government, & Another 1999 (1) SA 701 (O)(Unsuccessful tenderer had sufficient interest
to apply for the review of decision-making procedure for awarding tender in terms of the right to just
administrative action.) See, generally, Cheryl Loots 'Standing, Ripeness and Mootness' in S Woolman, T Roux, J
Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, February
2005) Chapter 7.
146 On internal limitations, see § 34.5 supra.
147 See Makwanyane (supra) at para 102. See also Ferreira (supra) at para 44. Lower courts were quick to place
the burden of justification of a limitation on the party — government or private — seeking to uphold the law
limiting the right. See Nortje v Attorney-General, Cape 1995 (2) SA 460 (C), 1995 (2) BCLR 236, 248 (C)('[P]arty
who seeks a limitation of [the] right bears the onus of establishing the justification for that limitation'); Zantsi v
Chairman, Council of State, Ciskei 1995 (2) SA 534 (Ck), 560, 1995 (10) BCLR 1424 (Ck)('Thereafter the onus is
on the party relying on a limitation to prove that it is a lawful limitation'); Park-Ross v Director: Office for Serious
Economic Offences 1995 (2) SA 148 (C), 1995 (2) BCLR 198 (C); Matinkinca v Council of State, Ciskei 1994 (4)
SA 472 (Ck), 1994 (1) BCLR 17, 34 (Ck)('Once it is established that a statute does interfere with or limit a
fundamental right ... the onus moves to the person attempting to justify the interference.')
148 See Moise v Transitional Local Council of Greater Germiston 2001 (4) SA 491 (CC), 2001 (8) BCLR 765 (CC)
at para 19 ('It is also no longer doubted that, once a limitation has been found to exist, the burden of justification
under s 36(1) rests on the party asserting that the limitation is saved by the application of the provisions of the
section. The weighing-up exercise is ultimately concerned with the proportional assessment of competing
interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for
justification must put such material before the Court. It is for this reason that the government functionary
responsible for legislation that is being challenged on constitutional grounds must be cited as a party. If the
That said, the Constitutional Court has, on a number of occasions, stated that the failure by
the government to offer any support for a limitation does not relieve a court of the duty to inquire
into its justifiability.149 Not surprisingly,
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however, a failure by the state to adduce the requisite evidence will generally result in a rather
perfunctory appraisal of the potential grounds for justification150 and often 'tip the scales against'
the state.151 We know of only one occasion, identified by Hilary Axam, in which the Constitutional
Court neither shifted the evidentiary burden to the state nor required any evidentiary showing by
the state before going on to find the limitation in question justified.152
The Constitutional Court is, not surprisingly, quite reticent about burden shifts within rights
that possess internal limitations. With respect to property, as we have seen, the Court's FC s 25
analysis of arbitrary deprivation and expropriation exhausts all plausible justifications.153 To the
extent that burden shifts do occur, they do so in the context of the complicated algorithm the
FNB Court has devised for deprivation and expropriation.154
government wishes to defend the particular enactment, it then has the opportunity — indeed an obligation — to
do so. The obligation includes not only the submission of legal argument but placing before Court the requisite
factual material and policy considerations. Therefore, although the burden of justification under s 36 is no
ordinary onus, failure by government to submit such data and argument may in appropriate cases tip the scales
against it and result in the invalidation of the challenged enactment.') Cf Gardener v Whitaker 1995 (2) SA 672
(E), 691D–E, 1994 (5) BCLR 19 (E)('It seems eminently reasonable in practical terms (and because,
conceptually, justification in terms of s 33 does not arise in a matter concerning competing fundamental rights) to
require that a plaintiff who seeks to rely on the precedence of one fundamental right over another should bear the
onus of establishing the basis for such precedence. Having done so, it may then still be possible for a defendant
to defeat the claim by relying on a defence justified by a rule of law of general application, but the onus of
showing that it complies with s 33 (the limitation clause) would then, in that regard, rest on the defendant.')
149 See Du Toit & Another v Minister for Welfare and Population Development & Others 2003 (2) SA 198 (CC),
2002 (10) BCLR 1006 (CC)('Du Toit') at para 31 ('The validity of these provisions is a matter of public importance
which is properly before the Court and which must be decided'); Phillips & Another v Director of Public
Prosecutions (Witwatersrand Local Division) & Others 2003 (3) SA 345 (CC), 2003 (4) BCLR 357 (CC) at para 20
('Phillips')('The absence of evidence and argument from the State does not exempt the court from the obligation
to conduct the justification analysis'); J v Director-General, Department of Home Affairs 2003 (5) SA 621 (CC),
2003 (5) BCLR 463 (CC) at para 15; National Coalition for Gay and Lesbian Equality v Minister of Justice 1999
(1) SA 6 (CC), 1998 (12) BCLR 1517 (CC)('NCGLE I') at paras 33–57 (State did not attempt to defend sodomy
laws in question, but Court proceeded, at some length, to assess the potential grounds for upholding the laws.)
150 See, eg, Minister for Welfare and Population Development v Fitzpatrick & Others 2000 (3) SA 422 (CC), 2000
(7) BCLR 713 (CC) at para 20; Potgieter v Lid van die Uitvoerende Raad: Gesondheid, Provinsiale Regering,
Gauteng 2001 (11) BCLR 1175 (CC); Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC),
2002 (9) BCLR 986 (CC) at para 26; S v Steyn 2001 (1) SA 1146 (CC), 2001 (1) BCLR 52 (CC) at paras 32–36;
S v Niemand 2002 (1) SA 21 (CC), 2001 (11) BCLR 1181 (CC).
151 Moise v Transitional Local Council of Greater Germiston 2001 (4) SA 491 (CC), 2001 (8) BCLR 765 (CC) at
para 19. See also Phillips (supra) at para 20.
152 See S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC), 1999 (7) BCLR 771 (CC)(Court
upholds a reverse onus provision that requires persons accused of certain kinds of offences to 'satisfy the court'
that they are entitled to bail.) On the Court's curious departure from form in Dhlamini, Axam writes:
In contrast to its past limitations cases requiring the state to bear the onus of justifying with precision 'the
particular provisions under attack', the Dlamini Court did not require the state to advance any evidence to justify
its statutory approach restricting access to bail based on entire categories of offenses, rather than on factors
shown to pose heightened risks to the bail system. Contrary to its cases requiring evidence of a convincing
correlation between a limitation and the problems it seeks to address, the Court did not demand any evidence
demonstrating that the offences subject to more restrictive bail standards were rationally correlated with
heightened risks to the interests of justice pending trial ... Although the Court noted that the risk of penalty may
increase the incentive to flee, it did not require the state to present evidence establishing this correlation or
suggesting that the nature of the charge is a reasonably reliable indicator of a risk of flight or other harm to the
bail system. Nor did the Court require the state to justify the statute's provision that the state's characterization of
the charge 'shall be conclusive' and that the onus is triggered merely by a written confirmation that the
prosecution 'intends to charge' the accused with one of the offenses subject to the onus. Although the Court
acknowledged that the statute makes the prosecution's characterization of the charge 'decisive' in determining
whether bail standards will be restricted, it did not scrutinise the potential arbitrariness or irrationality associated
with affording police and prosecutors virtually unfettered discretion to trigger the application of standards more
restrictive than those established by the Constitution.
Hilary Axam 'If the Interests of Justice Permit: Individual Liberty, the Limitations Clause and the Qualified Right to
Bail' (2001) 17 SAJHR 320, 330–31.
153 See First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service & Another;
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC), 2002 (7) BCLR 702 (CC).
OS 07-06, ch34-p46
With respect to burden shifts within socio-economics rights, the text is silent and analysts are
split as to whether such shifts can occur.155 An applicant who wishes to demonstrate that the
state has failed to discharge its duty to provide access to adequate housing under FC 26(1) will
have to satisfy the court that the state has failed to meet the 'reasonableness' test developed in
terms of FC s 26(2).156 As yet, the Court has refused to distinguish the reasonableness criteria
for justification within FC ss 26(2) and 27(2) from the reasonableness criteria for
OS 07-06, ch34-p47
justification within FC s 36.157 As a result, we have yet to see a genuine burden shift from FC ss
26 and 27 to FC s 36.
As far as equality analysis goes, burden shifts may occur within FC s 9.158 For example, a
demonstration that discrimination occurs on a prohibited ground in FC s 9(3) establishes a
154 See, generally, Theunis Roux 'Property' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop
(eds) Constitutional Law of South Africa (2nd Edition, OS, December 2003) Chapter 46. But see Nhlabathi &
Others v Fick [2003] 2 All SA 323 (LCC) at paras 33–34 ('As Ackermann J stated in the First National Bank case,
neither the text nor the purpose of section 36 suggests that any rights in the Bill of Rights are excluded from
limitation under its provisions. On the contrary, section 25(8) of the Constitution is explicit in making section 36
applicable to land, water and related reform measures. Despite the dictum by Ackermann J, no final decision was
taken by the Constitutional Court on the point to what extent an infringement of a right to property which is
protected by section 25, can be justified under section 36. Professor Van der Walt, in his book on the property
clause, argues convincingly that none of the limitations on the deprivation and expropriation of property
contained in section 25, are immune from the provisions of section 36. Most South African authors accept that
the general limitation provisions of section 36 and the specific limitation provisions of section 25 apply
cumulatively. We share that view.') As a statement of the law, the decision in Nhlabathi is simply wrong. The FNB
Court expressly rejected AJ van der Walt's cumulative approach. In addition to the author of the chapter on
property in this work, many other respected commentators have suggested that little space, if any, now exists for
meaningful FC s 36 limitations analysis of FC s 25 violations. See Roux (supra) at 46–36.
155 Minister of Health & Others v Treatment Action Campaign & Others No 2 2002 (5) SA 721 (CC), 2002 (5) SA
721 (CC)('TAC'); Government of the Republic of South Africa & Others v Grootboom & Others 2001 (1) SA 46
(CC), 2001 (9) BCLR 883 (CC)('Grootboom'); Khosa & Others v Minister of Social Development & Others;
Mahlaule & Others v Minister of Social Development & Others 2004 (6) SA 505 (CC), 2004 (6) BCLR 569 (CC)
('Khosa') at para 83 ('There is a difficulty in applying s 36 of the Constitution to the socio-economic rights
entrenched in ss 26 and 27 of the Constitution. Sections 26 and 27 contain internal limitations that qualify the
rights. The State's obligation in respect of these rights goes no further than to take "reasonable legislative and
other measures within its available resources to achieve the progressive realisation" of the rights. If a legislative
measure taken by the State to meet this obligation fails to pass the requirement of reasonableness for the
purposes of ss 26 and 27, s 36 can only have relevance if what is "reasonable" for the purposes of that section, is
different to what is "reasonable" for the purposes of ss 26 and 27.') See Sandra Liebenberg 'Interpretation of
Socio-Economic Rights' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS, December 2003) Chapter 33.
156 Commentators appear split over whether there is any meaningful burden shift from FC s 26(1) to FC s 26(2), or
from FC s 27(1) to FC s 27(2). Kevin Iles states that the Court's refusal to distinguish FC s 26(1) rights content
analysis from FC s 26(2) internal limitations analysis means that FC s 26(2) reasonableness analysis is
inextricably a part of FC s 26(1) rights analysis. See Kevin Iles 'Limiting Socio-Economic Rights: Beyond Internal
Limitations Clauses' (2004) 20 SAJHR 448, 464–65 (Iles further notes that '[f]ailure by our courts to allocate the
proper tasks to the correct stage of the two-stage rights interpretation process combined with the reluctance to
define the content of socio-economic rights has hampered our understanding of the operation of the internal
limitations clause.') Sandy Liebenberg offers a somewhat more nuanced account of burden shifts within FC s 26
and FC s 27. See Sandra Liebenberg 'Interpretation of Socio-Economic Rights' in S Woolman, T Roux, J
Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS,
December 2003) Chapter 33. She writes that 'the party claiming a constitutional violation would have to establish
a prima facie case that the measures undertaken are unreasonable because they violate one or more of the
criteria laid out in Grootboom.' Ibid at 33-53. She goes on to observe that — with respect to the 'within available
resources' criterion — '[i]t would be unreasonable to expect ordinary litigants to identify and to quantify the
resources available to the State for the realization of particular socio-economic rights. If the state wishes to rely
on a lack of available resources in order to rebut an allegation that it has failed to take reasonable measures, it
should bear the burden of proving the alleged unavailability of resources. Relevant organs of state are clearly
best placed to adduce this type of evidence'. Ibid at 33-53 (citations omitted).
157 Iain Currie and Johan De Waal concur with this assessment. See Iain Currie & Johan De Waal The Bill of
Rights Handbook (5th Edition, 2005) 165 ('It is, however, difficult to apply the general limitation clause to rights
with internal demarcations or qualifications that repeat the phrasing of s 36 or that make use of similar criteria.
For example, s 33(1), which provides, inter alia, a right to lawful and reasonable administrative action will be
violated by unlawful or unreasonable administrative action. It is hard to think of a way of justifying such
administrative action as a 'reasonable' limitation of the right, or of arguing that it is "in terms of law of general
application".')
rebuttable presumption of unfair discrimination, in terms of FC s 9(5), and forces the respondent
to demonstrate that the discrimination was, indeed, fair. If the discrimination is shown to be
unfair, and the respondent cannot overcome such a finding or presumption, few if any grounds
exist beyond those offered in the context of FC s 9 to justify the repugnant law.159
34.7 Law of general application
(a) The purpose and meaning of 'law of general application'
According to FC s 36(1), only 'law of general application' may legitimately limit the rights
entrenched in the Bill of Rights.160 This statement is beguilingly simple and prone to
misinterpretation.
The first distinction of import is that between law and conduct. To say that only 'law of general
application' may justify the impairment of a fundamental right
OS 07-06, ch34-p48
means that conduct — public or private — that limits a fundamental right but which is not
sourced in a law of general application cannot be justified in terms of FC s 36(1).161
If, in fact, law (as opposed to conduct) does the limiting of a fundamental right, the next
question is whether the law in question qualifies as 'law of general application'. When
determining whether a type of law — and any token of such a type — qualifies as law of general
application, it is important to remember that this threshold requirement is designed to promote
two primary ends: (1) to give effect to the rule of law;162 (2) to filter out bills of attainder.163 To give
effect to the rule of law, a law of general application must possess four formal attributes. First,
158 See Prinsloo v Van der Linde 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759 (CC); President of the Republic of
South Africa v Hugo 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC); Bhe & Others v Magistrate, Khayelitsha, &
Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole & Others; South African Human
Rights Commission & Another v President of the Republic of South Africa & Another 2005 (1) SA 580 (CC), 2005
(1) BCLR 1 (CC)('Bhe'); Minister of Finance v Van Heerden 2004 (6) SA 121 (CC), 2004 (11) BCLR 1125 (CC);
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC), 1998 (12) BCLR 1517
(CC); National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC), 2000 (1)
BCLR 39 (CC); Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC), 2002 (9) BCLR 986
(CC); Satchwell v President of the Republic of South Africa 2003 (4) SA 266 (CC), 2004 (1) BCLR 1 (CC).
159 See Cathi Albertyn & Beth Goldblatt 'Equality' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M
Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, March 2007) Chapter 35. See also Lotus River,
Ottery, Grassy Park Residents Association v South Peninsula Municipality 1999 (2) SA 817 (C), 1999 (4) BCLR
440 (C)(Only case of which we are aware in which finding of unfair discrimination under FC s 9 was ultimately
found justifiable in terms of FC s 36.)
160 The phrase 'law of general application' appears to have been borrowed from the German Basic Law ('GBL').
GBL, art 19(1), reads: 'In so far as a basic right may under this Basic Law be restricted by or pursuant to a law,
such law must apply generally and not to an individual case.' The phrase 'law of general application' serves the
same purpose as the phrase 'prescribed by law' does in the Canadian Charter, the European Convention of
Human Rights, and the New Zealand Bill of Rights. On the meaning of 'prescribed by law', see Reference re
Manitoba Language Rights [1985] 1 SCR 721, 748–49, 19 DLR (4th) 1; Sunday Times v United Kingdom (No 1)
(1979) 2 EHRR 245 at para 49; Mirielle Delmas-Marty (ed) The European Convention for the Protection of
Human Rights: International Protection versus National Restrictions (1992) 216–17; Peter Hogg Constitutional
Law of Canada (4th Edition, 2001).
161 See August v Electoral Commission & Others 1999 (3) SA 1 (CC), 1999 (4) BCLR 363 (CC) at para 23 ('In the
absence of a disqualifying legislative provision, it was not possible for respondents to seek to justify the
threatened infringement of prisoners' rights in terms of s 36 of the Constitution as there was no law of general
application upon which they could rely to do so.')
162 See Dawood v Minister of Home Affairs; Shalabi & Another v Minister of Home Affairs; Thomas v Minister of
Home Affairs 2000 (3) SA 936 (CC), 2000 (8) BCLR 837 (CC)('Dawood') at para 47 (On the relationship between
the rule of law and a law of general application.)
163 That the phrase 'law of general application' is meant to serve these two discrete purposes — and, in particular,
proscribe bills of attainder — is supported by the drafting history. See Technical Committee on Fundamental
Rights 'Sixth Report' (15 July 1993)(Includes phrase 'law of general application'); Technical Committee on
Fundamental Rights 'Seventh Report' (29 July 1993)(Phrase broken down into its two component parts and
reads 'a law applying generally and not solely to an individual case'); Technical Committee on Fundamental
Rights 'Tenth Report' (5 October 1993)(Phrase 'law of general application' supplants 'a law applying generally
and not solely to an individual case.' The Technical Committee suggests that its word choice was purely a matter
of artifice, an attempt at a more natural and elegant use of language, rather than a change in substance that
might diminish the force of an argument that bills of attainder were not the object of this proviso.)
the law must ensure parity of treatment in two respects: it must treat similarly situated persons
alike; and it must impose the same penalties on the governed and the governors, and accord
them the same privileges.164 Second, the rule of law — as opposed to the rule of man — requires
that those who enforce the law — the executive or the judiciary — do so in terms of a discernible
standard. Our rule of law culture sets its face against the arbitrary exercise of state power.165
Third, the law must be precise enough to enable individuals to
OS 07-06, ch34-p49
conform their conduct to its dictates.166 Laws may not grant officials largely unfettered discretion
to use their power as they wish, nor may laws be so vaguely worded as to lead reasonable
people to differ fundamentally over their extension.167
164 See Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of the Republic of South Africa
2000 (2) SA 674 (CC), 2000 (3) BCLR 241 (CC)('Pharmaceutical Manufacturers') at para 40 (footnotes omitted)
('We now have a detailed written Constitution. It expressly rejects the doctrine of the supremacy of Parliament,
but incorporates other common-law constitutional principles and gives them greater substance than they
previously had. The rule of law is specifically declared to be one of the foundational values of the constitutional
order, fundamental rights are identified and entrenched, and provision is made for the control of public power,
including judicial review of all legislation and conduct inconsistent with the Constitution.')
165 Ibid at paras 85–86 ('It is a requirement of the rule of law that the exercise of public power by the Executive and
other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary and inconsistent with this requirement.... The question
whether a decision is rationally related to the purpose for which the power was given calls for an objective
enquiry. Otherwise a decision that, viewed objectively, is in fact irrational, might pass muster simply because the
person who took it mistakenly and in good faith believed it to be rational. Such a conclusion would place form
above substance and undermine an important constitutional principle.') See also President of the Republic of
South Africa & Another v Hugo 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) at para 101 (In attempting to
determine the meaning of 'law of general application' Mokgoro J cites with approval McLachlin J's view in
Committee for Commonwealth of Canada v Canada [1991] 1 SCR 139, 77 DLR (4th) 385: 'She considered that
the 'prescribed by law' requirement was to eliminate from limitations clause purview conduct which is purely
arbitrary.' (Emphasis added).) See, further, Prinsloo v Van der Linde & Another 1997 (3) SA 1012 (CC), 1997 (6)
BCLR 759 (CC) at para 25 ('In regard to mere differentiation the constitutional State is expected to act in a
rational manner. It should not regulate in an arbitrary manner or manifest "naked preferences" that serve no
legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental
premises of the constitutional State.' (Emphasis added)); S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR
665 (CC) at para 156 (Ackermann J wrote that 'We have moved from a past characterised by much which was
arbitrary and unequal in the operation of the law to a present and a future in a constitutional State where State
action must be such that it is capable of being analysed and justified rationally. The idea of the constitutional
State presupposes a system whose operation can be rationally tested against or in terms of the law.
Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order.' (Emphasis
added).)
166 See De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, & Others 2004 (1) SA 406
(CC), 2003 (12) BCLR 1333 (CC)('De Reuck') at para 57 ('The first question is whether s 27(1), read with the
definition of child pornography, is a "law of general application" as required by [FC] s 36(1). This Court has held
that this requirement derives from an important principle of the rule of law, namely that "rules must be stated in a
clear and accessible manner". The applicant's complaint concerned clarity: he submitted that the definition of
"child pornography" in s 1 was too vague to satisfy this requirement. Having analysed and considered that
definition above, I am satisfied that it is sufficiently clear and does constitute a law of general application.') See
also Irwin Toy Ltd v Quebec [1989] 1 SCR 927, 58 DLR (4th) 577, 606, 617 ('Absolute precision in the law exists
rarely, if at all. The question is whether the legislature has provided an intelligible standard according to which the
judiciary must do its work.')
167 See Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC), 2002 (5) BCLR 43
(CC) at para 44 ('The next question to be considered is whether the provision is nevertheless justifiable despite
its inability to be read in the way that the Board suggests. The prohibition against the broadcasting of any
material which is "likely to prejudice relations between sections of the population" is cast in absolute terms; no
material that fits the description may be broadcast. The prohibition is so widely phrased and so far-reaching that
it would be difficult to know beforehand what is really prohibited or permitted. No intelligible standard has been
provided to assist in the determination of the scope of the prohibition. It would deny both broadcasters and their
audiences the right to hear, form and freely express and disseminate their opinions and views on a wide range of
subjects.') See also Dawood v Minister of Home Affairs; Shalabi & Another v Minister of Home Affairs; Thomas v
Minister of Home Affairs 2000 (3) SA 936 (CC), 2000 (8) BCLR 837 (CC) at para 47 ('It is an important principle
of the rule of law that rules be stated in a clear and accessible manner.... It is because of this principle that s 36
requires that limitations of rights may be justifiable only if they are authorised by a law of general application.
Moreover, if broad discretionary powers contain no express constraints, those who are affected by the exercise of
the broad discretionary powers will not know what is relevant to the exercise of those powers or in what
circumstances they are entitled to seek relief from an adverse decision.') There would appear to be a close
relationship between the requirement of clarity or precision for laws of general application and the doctrine of
overbreadth. In De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, & Others the High
OS 07-06, ch34-p50
Fourth, a commitment to the non-arbitrary exercise of power entails that the law must be
accessible to the citizenry.168 Law must be publicly promulgated and available ex ante in order to
avoid the appearance that its application and its execution are selective.169 Finally, as we noted
above, the phrase 'law of general application' is meant to prevent any attempt at justification for
bills of attainder. Bills of attainder are laws that pick out specific individuals or easily
ascertainable members of a group for punishment without judicial trial.170 Although bills of
attainder are a
OS 07-06, ch34-p51
species of arbitrary exercises of law-making authority, they identify a class of law that, on the
surface, sometimes appears to satisfy the requirements of parity, non-arbitrariness, accessibility
and precision. Despite such appearances, bills of attainder reflect an obvious perversion of that
which animates the rule of law in the first place.171
Court wrote:
The applicant has attacked the definition of 'child pornography' as ... overbroad ... and ... so vague that it cannot
be regarded as a law of general application.... To determine whether a law is overbroad, a Court must consider
the means used ... in relation to its constitutionally legitimate underlying objective....The objective of the
Legislature was clear. It was to eradicate child pornography in every form.... When one has regard to the
objectives of the legislation and the spirit of the Constitution, it can never be said that child pornography has any
place in an open and democratic society based on freedom and equality. Section 27(1), which outlaws the
possession of child pornography, cannot be said to be disproportionate to the objectives which the Legislature
has sought to achieve. In my view the definition of 'child pornography' is not overbroad.
2003 (3) SA 389 (W) at para 86. Although the court's conclusions about overbreadth and whether the definition in
question satisfies the requirements for a law of general application may well be correct, the reasoning does not
quite support its conclusions. Overbreadth is concerned, ultimately, with whether a law sweeps up into its
proscriptive net both constitutionally protected and constitutionally unprotected activity. It is not clear to us that
this overbreadth enquiry has anything to do with an enquiry into the constitutional legitimacy of the law's
objective, though this second enquiry is certainly part of limitations analysis. Nor is it clear to us that overbreadth
has anything to do with an assessment of proportionality except in the limited sense that in order to know what is
and is not constitutionally protected — and thus whether a law is, in fact, overbroad — one may first have to
determine what counts as a justifiable limitation on a fundamental right or freedom and what does not. Law of
general application analysis is a rather formal affair. The question in all cases of limitations analysis is whether
the law in question possesses those features of law required in a polity committed to the rule of law. It is not
about the subject matter of the law under scrutiny.
As Lorraine Weinrib notes, by subjecting the exercise of state power to the rule of law through the law of general
application test, we reinforce both the constitutional and the democratic nature of our regime of law. First, the law
of general application test protects our constitutional regime by requiring that '[a]rbitrary incursions on
guaranteed rights must yield in any confrontation with such fundamental values.' Weinrib 'The Supreme Court of
Canada and Section 1 of the Charter' (1988) 10 Supreme Court LR 469, 477. Secondly, the law of general
application test ensures that the potential reprieve which the limitation clause offers the government is available
'if, and only if, the state has utilized its democratic law-making machinery.' Ibid. Professor Weinrib's reasoning is
correct in so far as it concerns limitations analysis under the Charter. And her reasoning certainly sheds light on
our own Bill of Rights analysis. However, not all law that is subject to Bill of Rights analysis under our Final
Constitution will have passed through our democratic law-making machinery. Common law, customary law and
regulations are appropriate objects of limitations analysis — and none of them are the direct product of
democratic processes.
168 See Premier, Mpumalanga, & Another v Executive Committee, Association of State-aided Schools, Eastern
Transvaal 1999 (2) SA 91 (CC), 1999 (4) BCLR 382 (CC) at paras 41–42 ('[T]o permit the implementation of
retroactive decisions without, for example, affording parties an effective opportunity to make representations
would flout another important principle, that of procedural fairness. Citizens are entitled to expect that
government policy will ordinarily not be altered in ways which would threaten or harm their rights or legitimate
expectations without their being given reasonable notice of the proposed change or an opportunity to make
representations to the decision-maker... [T]he decision by the second applicant to terminate the payment of
bursaries to members of the respondent with actual retroactive effect and without affording those members an
effective opportunity to be heard was a breach of their right to procedural fairness enshrined in [IC] s 24(b) ...
[and] did not constitute "a law of general application".')
169 See Dawood (supra) at para 47 ('[I]f broad discretionary powers contain no express constraints, those who are
affected by the exercise of the broad discretionary powers will not know what is relevant to the exercise of those
powers or in what circumstances they are entitled to seek relief from an adverse decision.')
170 The US Constitution prohibits both the federal government and state governments from passing any bill of
attainder. Article I, ss 9, 10. See US v Lovett 328 US 303 (1946)(Legislation prohibiting payment to three named
federal employees on grounds of subversive activity declared invalid as bill of attainder); US v Brown 381 US 437
(1965)(Law making it a crime for member of Communist Party to serve as labour union official declared invalid as
bill of attainder.)
171 The rationale behind this prohibition against extra-judicial sanctions imposed without the possibility of a fair trial
does not support the proposition that laws which single out individuals or groups for benefits suffer from a similar
These general considerations lead us to ask two kinds of questions with respect to 'law of
general application' analysis. The first is whether there is, in fact, any law that authorizes the
challenged conduct. If the challenge is to law, then, secondly, we must ask whether the law in
question is 'law of general application'. As both a doctrinal matter and an empirical matter, the
four-pronged test for law of general application will be met by most legislation,172 regulations,173
subordinate legislation other than regulations,174 municipal by-laws,175 common law
OS 07-06, ch34-p52
rules,176 customary law rules,177
OS 07-06, ch34-p53
disability. With respect to benefits, the question is whether or not the law in question serves the 'naked
preferences' of those exercising power — which is another way of saying that the exercise of public power is
being used solely for private benefit without any consideration for the needs of the commonweal. See United
Democratic Movement v President of the Republic of South Africa & Others (African Christian Democratic Party
& Others Intervening; Institute For Democracy in South Africa & Another as Amici Curiae)(No 2) 2003 (1) SA 495
(CC), 2002 (11) BCLR 1179 (CC) at para 70 ('The distinction between the first period and all subsequent periods
is also rational ... Whilst other parties would not necessarily have been affected by this event, it cannot be said to
be irrational to pass a law of general application to deal with a concrete situation, rather than a law that would
apply only to members of the DA, the DP and the NNP. Indeed, to have made provision only for members of
those parties might itself have given rise to constitutional objection.')
172 See Mkontwana v Nelson Mandela Metropolitan Municipality & Another; Bissett & Others v Buffalo City
Municipality & Others; Transfer Rights Action Campaign & Others v MEC, Local Government And Housing,
Gauteng, & Others (Kwazulu-Natal Law Society and Msunduzi Municipality as Amici Curiae)('Mkontwana') 2005
(1) SA 530 (CC), 2005 (2) BCLR 150 (CC) at para 83 n8 ('Section 118(1) is a provision in an Act of Parliament
which governs all municipalities in South Africa. It is clearly a law of general application as contemplated by s 36
of the Constitution.') See also Deutschmann NO & Others v Commissioner for the South African Revenue
Service; Shelton v Commissioner for the South African Revenue Service 2000 (2) SA 106 (E), 124('It is no issue
that the IT Act and the VAT Act are laws of general application.')
FC s 25's requirement that a deprivation of property must occur in terms of law of general application has given
the courts another opportunity to determine the meaning of this phrase. See First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister
of Finance 2002 (4) SA 768 (CC), 2002 (7) BCLR 702 (CC)(Section 114 of Customs and Excise Act 91 of 1964
deemed law of general application for purposes of FC s 25); Mkontwana (supra) (Section 118(1) of the Local
Government: Municipal Systems Act 32 of 2000 and s 50(1)(a) of the Gauteng Local Government Ordinance 17
of 1939 found to be law of general application); Ex parte Optimal Property Solutions CC 2003 (2) SA 136 (C) at
para 21 ('The Removal of Restrictions Act 84 of 1967 is a law of general application within the meaning of [FC] s
25.')
173 See Larbi-Odam & Others v Member of the Executive Council for Education (North-West Province) & Another
1998 (1) SA 745 (CC), 1997 (12) BCLR 1655 (CC) at para 27 ('A precondition to the applicability of IC s 33(1) is
that the limitation of a right occur "by law of general application". I hold that precondition to be met in this case.
Regulation 2(2) is subordinate legislation which applies generally to all educators in South Africa.')
174 See President of South Africa & Another v Hugo 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) at para 96.
175 See North Central Local Council & South Central Local Council v Roundabout Outdoor (Pty) Ltd & Others
2002 (2) SA 625 (D), 2001 (11) BCLR 1109 (D)(Municipal by-law placing restrictions on advertising and signs,
and thus limiting rights of expression, found to be a law of general application for purposes of FC s 36.) See also
Du Toit v Minister of Transport 2006 (1) SA 297 (CC), 2005 (11) BCLR 1053 (CC).
176 See S v Thebus & Another 2003 (6) SA 505 (CC), 2003 (10) BCLR 1100 (CC) at paras 64–65 (The Court held
that an arrested person had the right to remain silent and that drawing an adverse inference on credibility from
silence limited the right. It wrote: 'The rule of evidence that the late disclosure of an alibi affected the weight to be
placed on the evidence supporting the alibi was one that was well recognised in the common law. As such, it was
a law of general application.') See also Du Plessis & Others v De Klerk & Another 1996 (3) SA 850 (CC), 1996 (5)
BCLR 735 (CC)('Du Plessis v De Klerk') at para 44 (On the meaning of 'law' in IC 7(2), as well as 'law' in terms of
IC 33(1)'s 'law of general application', the Court held that '[t]he term "reg" is used in other parts of chapter 3 as
the equivalent of "law", for example in [IC] s 8 ('equality before the law') and [IC] s 33(1) ('law of general
application'). Express references to the common law in such sections as [IC] s 33(2) and [IC] s 35(3) reinforce
the conclusion that the "law" referred to in [IC] s 7(2) includes the common law and that chapter 3 accordingly
affects or may affect the common law. Nor can I find any warrant in the language alone for distinguishing
between the common law of delict, contract, or any other branch of private law, on the one hand, and public
common law, such as the general principles of administrative law, the law relating to acts of State or to State
privilege, on the other.'). See also Du Plessis v De Klerk (supra) at para 136 (Kriegler J)('[IC] Section 33(1) ...
draws no distinction between different categories of law of general application ... [I]t is irrelevant whether it is
statutory, regulatory ... founded on the XII Tables of Roman Law ... or a tribal custom'); Shabalala & Others v
Attorney-General, Transvaal, & Another 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC) at para 23 ("'Law of
general application" within the meaning of [IC] s 33(1) would ordinarily include a rule of the common law'); S v
Mamabolo 2001 (3) SA 409 (CC), 2001 (5) BCLR 449 (CC)('Mamabolo') (Common law offence of scandalizing
the court is law of general application for purposes of FC s 36); Fidelity Guards Holdings (Pty) Ltd t/a Fidelity
rules of court,178 and international conventions.179 Whether 'mere' norms and standards,
directives or guidelines issued by government agencies or statutory bodies qualify as laws of
general application remains unclear.180
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(b) The relationship between law of general application and the rule of law
As John Finnis somewhat cheekily puts it, 'the Rule of Law' is 'the name commonly given to the
state of affairs in which a legal system is legally in good shape'.181 Here are some of the features
of a legal system in good shape:
Guards v Pearmain 2001 (2) SA 853 (SE), 862, 1997 (10) BCLR 1443 (SE)(Insofar as restraint constitutes
limitation on rights entrenched in s 22 of Constitution of the Republic of South Africa Act 108 of 1996, common
law complying with requirements of FC s 36(1)); Nortje & Another v Attorney-General, Cape & Another 1995 (2)
SA 460 (C), 476, 1995 (2) BCLR 236 (C)('There can be no doubt that the common-law [docket] privilege ... is law
of general application'); Jeeva & Others v Receiver of Revenue, Port Elizabeth, & Others 1995 (2) SA 433 (SE),
445F('The law relating to privilege unquestionably limits a person's constitutional right of access to State-held
information. It is part of the common law of evidence and hence a law of general application'); Khala v Minister of
Safety and Security 1994 (4) SA 218 (W), 227 , 1994 (2) BCLR 89, 97 (W)('The fundamental rights in chap 3 may
be limited by "law of general application". The word "law" is not defined in the Constitution. [IC] 33(2) provides
that save as provided for in s (1) or any other provision of the Constitution, "no law, whether a rule of the common
law, customary law or legislation, shall limit any right entrenched in this chapter." It follows, therefore, that the
word "law" in [IC] s 33(1) includes the common law'); Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281
(C) at para 18 ('[B]oth sides accept that, for purposes of [s 25(1) of] the [Final] Constitution, a "law of general
application" includes the common law'); Phato v Attorney-General, Eastern Cape, & Another; Commissioner of
the South African Police Services v Attorney-General, Eastern Cape, & Others 1995 (1) SA 799 (E), 1994 (5)
BCLR 99 (E)(The common law of docket privilege was a law of general application within the meaning of s
33(1)); Bellocchio Trust Trustees v Engelbrecht NO & Another 2002 (3) SA 519 (C), 524D('Even if I am wrong in
coming to the conclusion that the undue delay rule does not limit the right of access to court as envisaged by s
34 of the Constitution, it is my judgment that such limitation is both reasonable and justifiable with reference to
the limitations clause contained in s 36(1) of the Constitution.') Foreign courts have reached similar conclusions.
See R v Therens [1985] 1 SCR 613, 645, 18 DLR (4th) 655; Ministry of Transport & Noort Police v Curren [1992]
3 NZLR 260; Sunday Times v The United Kingdom (No 1) (1979) 2 EHRR 245 at para 47.
177 Bhe & Others v Magistrate, Khayelitsha, & Others (Commission for Gender Equality as Amicus Curiae); Shibi v
Sithole & Others; South African Human Rights Commission & Another v President of the Republic of South
Africa & Another 2005 (1) SA 580 (CC), 2005 (1) BCLR 1 (CC) at para 96 ('The primogeniture rule, . . [a]s the
centrepiece of the customary-law system of succession, ... violates the equality rights of women and is an affront
to their dignity. The result is that the limitation it imposes on the rights of those subject to it is not reasonable and
justifiable in an open and democratic society founded on the values of equality, human dignity and freedom.')
See also Nwamitwa v Phillia & Others 2005 (3) SA 536 (T)(Customary law rules, viewed in toto, constitute law of
general application that ultimately justify the tribal authorities' refusal to appoint a female chief.) Cf Taylor v
Kurtstag NO & Others 2005 (1) SA 362 (W), 385, 2005 (7) BCLR 705 (W) ('Whether the internal rules of a
religious group are likely to qualify as "law of general application", as referred to in s 36(1), is questionable ...
What is meant with this expression includes the law in the general sense of the legal system applicable to all
which, in this case, allows for contractual freedom to associate and actions flowing from it.')
178 The authority for this proposition may be described as 'weak' by comparison to the authority that underwrites
the recognition of other types of law as law of general application. See Ingledew v Financial Services Board: In
re Financial Services Board v Van der Merwe & Another 2003 (4) SA 584 (CC), 2003 (8) BCLR 825 (CC) at para
19 (Although not germane to outcome, Constitutional Court and High Court both appeared to accept the
proposition that Rule 35(14) of the Uniform Rules of Court 'was a law of general application which reasonably
and justifiably limited the constitutional right'); Sanford v Haley NO 2004 (3) SA 296 (C)(Suggests that rules of
court qualify as law of general application); S v Nocuse & Others 1995 (3) SA 240 (Tk)(Rules of court regarding
leave to appeal found to be law of general application for purposes of limitations analysis under IC s 33(1)).
179 See Chief Family Advocate & Another v G 2003 (2) SA 599 (W)(Noting that, in Sonderup v Tondelli & Another
2001 (1) SA 1171 (CC), 2001 (2) BCLR 152 (CC), the Constitutional Court found that the Hague Convention on
Civil Aspects of International Child Abduction Act 72 of 1996, having been incorporated into domestic law, was a
law of general application.)
180 With respect to socio-economic rights, Danie Brand argues, persuasively, that policies and programmes
undertaken by the state must often be viewed, along with enabling legislation, as law of general application that
governs a particular area of socio-economic life. Brand's argument rests on a distinction between law that
imposes a negative duty on the state and law that imposes a positive duty on the state. The test for law of
general application in the context of 'negative' rights is characterized by restrictions on how public power may be
exercised. However, because the test for compliance in socio-economic rights cases is whether the state has
created a comprehensive and coordinated programme to realize progressively a right, and whether it has taken
the necessary steps to execute that programme, the test for law of general application in the context of positive
rights must be viewed in terms of how the 'law' of that programme — enabling legislation, subordinate legislation
and policies — works to effect the desired ends. To be clear, the issue here is whether one can, in fact, separate
(i) its rules are prospective, not retroactive, and (ii) are not in any other way impossible to comply
with; ... (iii) its rules are promulgated, (iv) clear, and coherent one with another; ... (v) its rules are
sufficiently stable to allow people to be guided by their knowledge of the content of rules; ... (vi) the
making of decrees and orders applicable to relatively limited situations is guided by rules that are
promulgated, clear, stable, and relatively general; and ... (vii) those people who have authority to
make, administer and apply the rules in an official capacity (a) are accountable for their compliance
with rules applicable to their performance and (b) do actually administer the law consistently and in
accordance with its tenor.182
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Finnis's description of the rule of law coheres with our own account of the formal features of law
of general application. Before further adumbrating the contents of that account, it is worth
stopping a moment to interrogate Finnis's first remark a little more closely. The rule of law, he
out, in the domain of socio-economic rights, policies and guidelines from the rest of the state's law-making
function. See Danie Brand 'Food' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS, February 2005) Chapter 56C. But see Jacques de Ville 'The
Right to Administrative Justice: An Examination of s 24 of the Interim Constitution' (1995) 11 SAJHR 264, 275
(Argues that 'law of general application' covers only laws and not actions pursuant to laws; therefore actions
pursuant to laws could not be justified under IC s 33(1).)
South African and Canadian authority is divided on the matter. See Committee for Commonwealth of
Canada v Canada [1991] 1 SCR 139, 77 DLR (4th) 385 (Court divided as to whether internal airport rules
qualified as law for purposes of Charter s 1 review). See, further, Stuart Woolman & Johan de Waal 'Freedom of
Assembly: Voting With Your Feet' in D van Wyk, J Dugard, B de Villiers & D Davis (eds) Rights and
Constitutionalism: The New South African Legal Order (1994) 292, 308–14 (Discussion of Committee for
Commonwealth of Canada v Canada and problems that law of general application analysis can raise for Bill of
Rights analysis generally.) To the extent that such rules, directives and guidelines satisfy the four rule-of-law
criteria, at least two good reasons exist for treating them as law of general application. First, if such rules,
directives and guidelines are deemed not to qualify as law of general application, then the government or party
relying upon the policy or guideline will not have the ability to justify them under FC s 36. Pressure may then be
placed on the court to do justificatory analysis under the right 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 rights analysis — one entirely under the right, one more naturally divided
between the right and the limitation clause. Mokgoro J adopted such a line in President of the Republic of South
Africa v Hugo. 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC)('Hugo'). Mokgoro J wrote:
I consider it undesirable to take a technical approach to the interpretation of 'law of general application' ... [A]
technical approach unduly reduces the types of rules and conduct which can justify limitations ... [E]xclusion from
section 33(1) may adversely affect the proper interpretation of the scope of rights in Chapter 3.
Ibid at para 104. Second, if the four-part test is actually satisfied, then a refusal to engage in limitations analysis
for norms and standards, policies and guidelines, would mean that persons who had acted in reliance upon
these state initiatives and aligned their behaviour accordingly, would have no ability to justify any action taken in
light of what would have been understood to be state-sanctioned forms of behaviour. The exclusion of such
policies and guidelines from FC s 36 justificatory analysis simply sets the bar too high. Kriegler J, also in dissent,
agreed with the general framework adumbrated herein, but differed with Mokgoro J on the application of that
analytical framework to the 'law' at issue in Hugo. Kriegler J argued that that exercise of the presidential pardon
provided for in IC s 82(1)(k) could not be characterized as law. Kriegler J wrote:
The exercise of such power is non-recurrent and specific, intended to benefit particular persons or classes of
persons, to do so once only, and is given effect by an executive order directed to specific state officials. I
respectfully suggest that one cannot by a process of linguistic interpretation fit such an
executive/presidential/administrative decision and order into the purview of s 33(1). That savings clause is not
there for the preservation of executive acts of government but to allow certain rules of law to be saved.
Ibid at para 76. We are inclined to agree with Kriegler J's characterization of the particular presidential pardons at
issue. But the problem is not, as Currie and De Waal suggest, that the pardon picks out particular persons for a
benefit. See Iain Currie & Johan De Waal (eds) The Bill of Rights Handbook (5th Edition, 2005) 173. Individuation
is only a problem where law picks out a readily identifiable set of persons for extra-judicial punishment. It is the
star-chamber quality of such an edict that offends the commitment to the rule of law. The problem in Hugo is that
the 'law' in question does not create an identifiable standard around which an individual may align his or her
behaviour. The presidential commutation of a sentence is an ex post facto assessment of what justice requires.
However, Kriegler J's gloss on what constitutes 'law' should not be understood to stand for the proposition that
administrative policies cannot count as law. That, unfortunately, is exactly how Currie and De Waal characterize
Kriegler J's conclusions. Rather such directives may well count as law if they possess the four formal attributes of
law we describe below: parity of treatment, non-arbitrariness, precision and accessibility. Moreover, it strikes us
as odd that such government edicts — which are prospective in nature and intended to provide standards for the
behaviour of state officials and private persons — should not count as law. It is one thing to exclude from
consideration decisions that are retrospective in effect and edicts that remain in the drawer of a bureaucrat. It is
quite another to elevate form over substance and exclude from consideration those edicts that, by virtue of their
prospective effect, shape public and private behaviour.
181 John Finnis Natural Law and Natural Rights (1980) 270.
182 Ibid at 270–271.
says, describes a legal system 'legally' 'in good shape'. Finnis is being neither funny nor
tautological. What he means is that in an age such as ours, where the ideals of
legality and the Rule of Law ... enjoys an ideological popularity, ... conspirators against the common
good will regularly seek to gain and hold power through an adherence to constitutional and legal
forms which is not the less 'scrupulous' for being tactically motivated, insincere and temporary. Thus,
the Rule of Law does not guarantee every aspect of the common good and sometimes it does not
even secure the substance of the common good.183
In sum, a commitment to the rule of law — and to the formal features of law identified above — is
a necessary but insufficient condition for a just or a fair society.
(c) The specific features of law of general application
The threshold test for law of general application excludes, from the more general justificatory
framework provided by FC s 36, two classes of cases. The first class of cases embraces those
instances in which the party whose conduct has been found to limit a fundamental right cannot
rely upon an existing rule of law as a justification for the limitation. In short, FC s 36 only permits
the justification of law.184 It does not
OS 07-06, ch34-p56
permit the justification of conduct for which no legal authorization exists.185 The second class of
cases encompasses those instances in which the law which purportedly authorizes the conduct
found to limit a fundamental right does not qualify as 'law of general application'. In short, FC s
36 only permits the justification of law that possesses four formal attributes. Parties that have
relied upon law that does not possess these four formal attributes cannot make use of FC s 36's
general justificatory framework.
(i) Law and conduct
Law that fails to meet the 'law' requirement of law of general application falls into roughly two
categories. Those categories are: (aa) grant of power to government officials not constrained by
identifiable legal standards; and (bb) commissions and omissions. Commissions and omissions
that fail to meet the desiderata for 'law of general application' fall into two related categories: (x)
183 Finnis (supra) at 274. As Finnis observes, regimes that are exploitative or ideologically fanatical or some
mixture of the two could submit themselves to the constraints imposed by the rule of law if it served the
realization of their narrow conception of the good. Indeed, both Stephen Ellmann and David Dyzenhaus argue
persuasively that South Africa under apartheid was an exploitative and ideologically fanatical regime committed
to the rule of law. Stephen Ellmann In a Time of Trouble: Law and Security in South Africa's State of Emergency
(1992); David Dyzenhaus Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal
Philosophy (1991). Why would a fanatic or an ideologue bother? Because by abiding by the rule of law, the
ideologue can disguise his malignant intent. That said, while the rule of law did constrain the South African state
— and even allowed for a cramped conception of human rights — few would allow that it was fair or just. What
was missing was any real commitment to individual dignity and the sense that the purpose of the state was to
enable all persons to 'constitute themselves in community'. Finnis (supra) at 274. It should come then as no
surprise that the two most important — and somewhat novel — constitutional doctrines developed by the
Constitutional Court in its first decade of operation turn on a robust and substantive conception of the rule of law
and an account of dignity that makes it the Grundnorm for the Final Constitution. See Frank Michelman 'The Rule
of Law, Legality and the Supremacy of the Constitution' in S Woolman, T Roux, J Klaaren, A Stein, M
Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, February 2005) Chapter 11;
Stu Woolman 'Dignity' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional
Law of South Africa (2nd Edition, OS, December 2005) Chapter 36. Quite unlike the regime of law authorized by
apartheid, the new dispensation recognizes that its legitimacy is conditional upon the state's commitment to act
for the 'general' welfare and to treat all individuals as worthy of equal concern and respect.
The point of our brief digression into a finer point of legal philosophy is this. Although the obvious concern of the
law of general application requirement is that various formal processes be observed — publicity, accessibility,
precision, parity — the requirement is, at bottom, concerned with substantive features (the rule of law and
individual dignity are but two) of a constitutional state.
184 S v Williams & Others 1995 (3) SA 632 (CC), 1995 (7) BCLR 861 (CC) at para 92 ('I accordingly find that the
provisions of s 294 of the Act violate the provisions of ss 10 and 11(2) of the Constitution and that they cannot be
saved by the operation of s 33(1) of the Constitution. Although the provision concerned is a law of general
application the limitation it imposes on the rights in question is, in the light of all the circumstances, not
reasonable, not justifiable and it is furthermore not necessary. The provisions are therefore unconstitutional.')
185 Whether conduct is, in fact, always authorized by law is a philosophical problem addressed elsewhere in this
work. See Stu Woolman 'Application' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS, February 2005) Chapter 31.
conduct carried out under colour of law but beyond the scope of actual legal authority; (y) the
failure to discharge constitutional duties.
(aa) Grant to and exercise of power by government officials not constrained by
identifiable legal standards
The most obvious instances in which the state may not avail itself of the justificatory framework
provided for in FC s 36 are those cases in which it can rely upon no law for authorization of its
conduct. In Pretoria City Council v Walker, for example, the applicant challenged a decision by
the City Council that differentiated between categories of ratepayer in terms of race.186 The Court
noted that the respondent's challenge under the equality clause, IC s 8, was to the conduct of
the council, not to law. Since, as the Court correctly reasoned, that conduct 'was clearly not
authorised, either expressly or by necessary implication by law of general application', IC s
33(1), the limitation clause, could not be used to justify the Council's unfair discrimination.187
In De Lille & another v Speaker of the National Assembly, the applicant was found guilty of
misconduct and suspended by Parliament for an alleged violation of parliamentary etiquette.188
The High Court found that the punishment limited the applicant's rights under FC ss 16, 33 and
34 — as well as FC s 58 — and that it could not be justified under FC 36. Parliament's actions
could not be justified in terms of FC s 36, because, as Hlophe J wrote, they
OS 07-06, ch34-p57
did not take place in terms of law of general application. There is no law of general application which
authorises such a suspension. It is not authorised by the Constitution, the Powers and Privileges of
Parliaments Act of 1963 or the Standing Rules of the National Assembly. The law of Parliamentary
privilege does not qualify as a law of general application for purposes of s 36. It is not codified or
capable of ascertainment. Nor is it based on a clear system of precedent. Therefore there is no
guarantee of parity of treatment.189
That no law authorized Parliament's conduct should have been sufficient to justify the De Lille
Court's conclusion. However, as the quotation above reflects, Hlophe J felt it important to
emphasize that Parliament's actions — even if dressed up as law — could not satisfy the four
criteria by which any law of general application must be measured.
The Constitutional Court, the Supreme Court of Appeal and the High Court have all struggled
with the problem of how to characterize — in terms of law of general application — contractual or
quasi-contractual relationships that limit the exercise of fundamental rights. In two cases, the
Constitutional Court and the Supreme Court of Appeal characterized these relationships as
conduct ungoverned by law. In a third case, the High Court held the opposite to be true. For
reasons that we hope to make clear, only the High Court's analysis makes sense of the problem.
In Hoffmann v South African Airways, South African Airways ('SAA'), a subsidiary of Transnet,
and thus an organ of state, was found to have unfairly discriminated against an applicant for
employment.190 SAA's refusal to hire the applicant because he was HIV-positive violated FC s 9.
The Constitutional Court held that the state could not, in terms of FC s 36, seek to justify its
unfair discrimination, because the discrimination had not been authorized by a law of general
application.191 The Constitutional Court did not even bother to entertain the argument that the
extant law of contract, at the time the dispute arose, provided support for SAA's conclusion that it
could hire whomever it thought best suited for the position of cabin steward.
The problem of how to understand the nature of state action with respect to contractual
arrangements is raised once again in Transnet Ltd v Goodman Brothers (Pty) Ltd.192 After
reaching the conclusion that the terms of a tender constituted a limitation of FC s 33, the right to
administrative justice, the Supreme Court of Appeal concluded that those contractual terms did
186 1998 (2) SA 363 (CC), 1998 (3) BCLR 257 (CC)('Pretoria City Council').
187 Ibid at para 82.
188 1998 (3) SA 430 (C), 1998 (7) BCLR 916 (C)('De Lille').
189 De Lille (supra) at para 37.
190 2001 (1) SA 1 (CC), 2000 (11) BCLR 1211 (CC)('Hoffman')
191 Ibid at para 41.
192 2001 (1) SA 853 (SCA), 2001 (2) BCLR 176 (SCA)('Transnet')
not, themselves, constitute law of general application for the purposes of justification under FC s
36. However, if one grants that such waivers exist — which one of the authors of this chapter has
argued strenuously we should not do193— then one must ask how waivers come to exist. They
come to exist in terms of the law of contract. Thus, if one chooses to
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recognize the existence of constitutional waivers — which we again warn one should not — then
one is committed to the proposition that law of general application — the law of contract —
authorizes the waiver. Only when one denies the existence of waiver as a conceptually
meaningful entity does it make sense to speak of conduct that cannot be justified by reference to
law.194
The problems that attend the description of contractual relationships in terms of law of
general application are thrown into somewhat sharper relief by disputes between private parties
governed by common law. In these disputes, no questions about the legitimacy of the exercise of
state power arises.195 That is to say, the court's view of the underlying basis for the dispute is not
obscured by such public law principles as the ultra vires doctrine. For example, in Taylor v
Kurtstag NO & Others, the High Court was asked to decide whether the exclusion of the
applicant by the respondent from participation in Jewish religious rituals could be justified.196 The
High Court correctly concluded that it could be. The High Court was not, however, entirely clear
about the provenance of the law that enabled the exclusion to be justified. Having found that the
applicant's FC s 15 and 31 rights had been limited by the respondent, the High Court felt obliged
to ask 'whether the internal rules of a religious group ... qualify as law of general application'.197
This, Malan J concludes, is the wrong way to go about solving the problem. Rather, he suggests,
the law of general application at issue in the case embraces the body of common law rules that
permit individuals and groups to freely associate. It was such law upon which the respondent
relied when excluding the applicant from participating in the community's religious rituals, and it
was this body of common law that justified the limitations placed upon the applicant's rights of
religion and religious practice.198
(bb) Commission and omission
(x) Conduct carried out under colour of law but beyond the scope of actual legal
authority
Administrative or executive action may be deemed not to satisfy this criterion of 'law' where law
enforcement officials act in a manner that infringes fundamental rights without possessing clear
legal authority to do so. Such actions might include the failure of the police to inform an arrested
person that she has a right to counsel where no statutory provision or rule of common law
specifies the
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conditions under which such a failure to inform could legitimately occur.199 Likewise, if a law
enforcement official were to take a confession without informing the accused of his right to
remain silent — in the absence of controlling legal authority — then the action would not be
justifiable under the limitation clause.200 Although such administrative or executive action would
lack the four formal attributes of a law of general application — parity of treatment, non-
193 See Woolman 'Application' (supra) at § 31.7.
194 Woolman 'Application' (supra) at § 31.7.
195 See, eg, Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain 2001 (2) SA 853 (SE), 1997 (10)
BCLR 1443 (SE) (Insofar as a restraint of trade clause constitutes a limitation on rights entrenched in FC s 22,
the common law rules of contract that sanction such clauses constitute law of general application that comply
with the proportionality requirements of FC s 36(1).)
196 2005 (1) SA 362 (W), 2005 (7) BCLR 705 (W).
197 Ibid at 385–386.
198 Ibid at 387.
199 See R v Therens [1985] 1 SCR 613, 18 DLR (4th) 655.
200 See Frank Snyckers & Jolandi le Roux 'Criminal Procedure: Rights of Arrested, Detained and Accused
Persons' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of
South Africa (2nd Edition, OS, July 2006) Chapter 51. See also R v Hebert [1990] 2 SCR 151, 57 CCC (3d) 1.
arbitrariness, precision and accessibility — and thus fail the second part of the law of general
application test, there seems to be no good reason to allow the analysis to go that far.201
Minister of Safety & Security & Another v Xaba offers a paradigmatic example of law
enforcement officials acting under colour of law without possessing the requisite legal authority
to do so.202 In Xaba, police officers compelled a suspect to have surgery to remove a bullet that
they believed would provide evidence connecting the suspect to a crime he was alleged to have
committed. Neither the Criminal Procedure Act nor any other law authorizes surgery without
consent. As a result, the exercise of state power to compel surgery of a suspect, in the absence
of legal authority,203 failed to satisfy the 'law' leg of the test for law of general application and
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the state could not justify its prima facie limitation of the suspect's FC s 12 right to freedom and
security of the person.204
(y) The failure to discharge constitutional duties
The class of cases that form this category could be treated as part of the preceding category.
One might argue that it does not matter whether the violation of a right occurs through action or
inaction, given that for the purposes of 'law of general application' analysis all that matters is that
neither the commission nor the omission are authorized by law. However, we believe that the
failure to discharge 'constitutional duties' constitutes a unique enough transgression in our
constitutional order to warrant separate discussion.
In President of the Republic of South Africa & Another v Modderklip Boerdery (Pty) Ltd, the
Constitutional Court found that the state had failed to take 'reasonable steps' to discharge its
responsibilities — under FC s 34 read with FC s 1(c) — to provide Modderklip Boerdery with an
effective remedy.205 Moreover, the state failed to offer any 'acceptable reasons' for this failure to
201 But see S v Mathebula 1997 (1) SACR 10 (W), 1997 (1) BCLR 123 (W). In Mathubela, Claasens J's reliance on
the notion of waiver results in a critical error in reasoning with regard to whether or not law of general application
exists that will permit the state to argue in justification of its limitation of the right to remain silent. The state does
not claim that a rule of law — in the form of legislation or common law — exists that permits police officers to
extract confessions without informing an arrested person of her right to remain silent. Instead, the state claims
that the doctrine of waiver constitutes the rule of law — the law of general application — upon which the state
relies as a justification for its infringement of various fair trial rights under IC s 25. The honourable judge concurs.
As one of the authors has argued at length elsewhere in this work, both the state and the judge must be wrong.
No such thing as waiver exists. If no such thing as waiver exists, then there can be no general law of application
upon which the state, in this case, can rely. See Woolman 'Application' (supra) at § 31.7 ('Put pithily, what is at
issue in all these cases is not the waiver of a right, but the interpretation of a right.... Thus whether we are talking
about life, dignity, torture, slavery, religion, expression or property, the question is always the same: does the
right permit the kind of activity, relationship or status contemplated at some point in time by the parties before the
court. If it does not, then ... the right bars the law or conduct contemplated and no such thing as waiver can
occur. If the right in question permits the kind of activity or agreement in question, then the parties may do as
they wish and the question of waiver never arises.')
202 2003 (2) SA 703 (D), 2004 (1) SACR 149 (D).
203 An argument could be made that many of these cases could be brought under the Promotion of Administrative
Justice Act ('PAJA'). Were that so, only in cases such as Carmichele v Minister of Safety and Security 2001 (4)
SA 938 (CC), 2001 (10) BCLR 995 (CC) and K v Minister of Safety and Security 2005 (6) SA 419 (CC), 2005 (9)
BCLR 835 (CC) — where no statutory or common-law remedy exists — would there be a need to develop the
law and to create an appropriate remedy — in terms of FC s 8(3) — in direct reliance on a constitutional right.
204 There would seem to us to be a host of other cases in which state actors, acting under the colour of law, have
been found to be acting outside the scope of their legal authority and in violation of constitutional rights. In many
of these cases, however, the courts have chosen not to view the violation as a direct infringement of a
fundamental right. Instead, they have described the unconstitutional act as a reflection of a lacuna in the
common law or a statute, and have developed the common law or construed the statute accordingly. See K v
Minister of Safety and Security 2005 (6) SA 419 (CC), 2005 (9) BCLR 835 (CC); Rail Commuters Action Group &
Others v Transnet Ltd t/a Metrorail & Others 2005 (2) SA 359 (CC), 2005 (4) BCLR 301 (CC); Carmichele v
Minister of Safety and Security 2001 (4) SA 938 (CC), 2001 (10) BCLR 995 (CC). Because the court refuses, in
these cases, to engage in direct application of the Bill of Rights and the concomitant two-stage analysis, the
court never has to ask whether the act in question could be justified by reference to some law of general
application.
205 2005 (5) SA 3 (CC), 2005 (8) BCLR 786 (CC) at para 51 ('The obligation resting on the State in terms of s 34 of
the Constitution was, in the circumstances, to take reasonable steps to ensure that Modderklip was, in the final
analysis, provided with effective relief. The State could have expropriated the property in question or provided
other land, a course that would have relieved Modderklip from continuing to bear the burden of providing the
occupiers with accommodation. The state failed to do anything and accordingly breached Modderklip's
act. Given that no law could be invoked to justify this failure to act, the Court noted that FC s 36
'is not applicable ... since no law of general application' actually limited Modderklip's rights.206
The state's omission amounted to conduct unauthorized by law.
The state found itself in a similar position in August & Another v Electoral Commission &
Others.207 The state had neither created the necessary mechanism that would enable eligible
prisoners to register and to vote, nor had it sought to disqualify them through legislation. As a
result, once the applicant had established that the state had not taken any steps to make the
exercise of the franchise possible, and had thereby violated FC s 19, the state could not then
'seek to
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justify the threatened infringement of prisoners' rights in terms of s 36 of the Constitution as there
was no law of general application upon which they could rely to do so'.208
(ii) Criteria for law of general application
Assuming that the limitation of a fundamental right takes place in terms of law, the next question
a court must ask is whether the law in question is 'law of general application'. A law of general
application, rightly described, possesses the following four features: (1) parity of treatment, (2)
non-arbitrariness, (3) accessibility or public availability; and (4) precision or clarity.
The case law on this subject remains surprisingly thin. As a result, we use the extant case law
and foreign jurisprudence to support a 'preferred reading': namely that a 'law of general
application' — grounded in an underlying commitment to the rule of law — must possess the
aforementioned four attributes.
(aa) Parity of treatment
The word 'general' in 'law of general application' is a bit of a misnomer. It does not, as many
an uninitiated student of constitutional law has concluded, literally mean that the law must apply
to everyone.209
First, it means that the state — through the legislature, the executive, and the judiciary —
must, broadly speaking, treat similarly situated persons the same. In Joubert v Van Rensburg, for
example, the court remarked obiter that the state could not justify deprivations of property in
terms of the Extension of Security of Tenure Act210 (ESTA) because ESTA had burdened only
agricultural property.211 For the purposes of satisfying the parity of treatment requirement of the
'law of general application' test, the Joubert court suggested that the apposite provisions of ESTA
ought to have applied to all property owners.
constitutional rights to an effective remedy as required by the rule of law, s 1(c), and entrenched in s 34 of the
Constitution.')(Emphasis added.)
206 Ibid at para 52.
207 1999 (3) SA 1 (CC), 1999 (4) BCLR 363 (CC)('August').
208 August (supra) at paras 22–23.
209 Mhlekwa v Head of the Western Tembuland Regional Authority & Another; Feni v Head of the Western
Tembuland Regional Authority & Another 2001 (1) SA 574 (Tk), 622B('Mhlekwa'). The court held that the
Regional Authority Courts Act 13 of 1982 (Tk) is law of general application despite the fact that the law does not
apply to all residents of South Africa. The court cites in support of this conclusion the reasoning of the
Constitutional Court in Makwanyane. See Makwanyane (supra) at para 32. It quotes, with approval, De Waal and
Currie, who write, as follows:
It would be absurd to suggest that ... a law of [the] Gauteng legislature cannot qualify as 'law of general
application' simply because it does not apply uniformly throughout the Republic. The structure of government
established in the Constitution envisages legislation that is limited in its area of application and accordingly
provincial legislation will qualify as a law of general application for purposes of s 36.
Johan De Waal, Iain Currie & Gerhard Erasmus Bill of Rights Handbook (4th Edition, 2001) 116 (quoted in
Mhlekwa (supra) at 622C–D).
210 Act 62 of 1997.
211 Joubert & Others v Van Rensburg & Others 2001 (1) SA 753 (W), 797('In its content, in the setting of the
particular statute, and in the manner in which the Tenure Act handles the situation, the Tenure Act is not 'of
general application' in burdening only agricultural property.') The judgment of the High Court in this case was
severely criticized by the Constitutional Court in Mkangeli & Others v Joubert & Others. 2001 (2) SA 1191 (CC),
2001 (4) BCLR 316 (CC).
OS 07-06, ch34-p62
Second, parity of treatment in a constitutional state committed to the rule of law means that
the governed and the governors are subject to the same penalties and receive the same
privileges. In De Lille, the High Court and the Supreme Court of Appeal concluded, on different
grounds, that Parliament's naked exercise of power with respect to its suspension of MP Patricia
de Lille did not satisfy the requirement that Parliament itself must abide by rules that are clearly
discernible to all persons in advance of any action that Parliament or that another state actor
undertakes.212 Both courts demanded that Parliament treated the governed — in this case Ms de
Lille — as it would treat the governors — itself.
Moreover, both courts seemed to indicate that such laws could not take the form of edicts
articulated by relatively transient majorities in the anticipation of the commission of an offence or
after the commission of the offence. Language in both judgments suggests that the High Court
and the Supreme Court of Appeal would — were the terminology part of South African law —
characterize the sanctions imposed by Parliament upon Ms de Lille as a bill of attainder.
(bb) Non-arbitrariness
Laws of general application must enable citizens to conform their behaviour to a discernible
standard. In order for them to do so, the state — whether in the form of the executive or the
judiciary — must be able to enforce the law according to a discernible standard. In Case &
Curtis, the Constitutional Court held that the definition of 'obscenity' in the Indecent or Obscene
Photographic Matter Act213 was of 'such indeterminate reach' that it could not but result in
arbitrary enforcement.214 The Case & Curtis Court found that the definition of 'obscenity'
invariably swept up into the Act's proscriptive net constitutionally protected expression as well as
constitutionally unprotected expression. The arbitrariness or standardlessness of the definition
led, inexorably, to a finding by the Court that the law was void for overbreadth:
One need proceed no further to appreciate that the means embodied in s 2(1), read with the
definition of obscene or indecent material, which includes within its overbroad compass a vast array
of incontestably constitutionally protected categories of expression, are entirely disproportionate to
whatever constitutionally permissible objectives might underlie the statute. Such a law is ipso facto
not reasonable within the meaning of s 33 (1)(a)(i).215
OS 07-06, ch34-p63
While the Court was certainly correct in its conclusion that the definition of 'obscenity' in the
Indecent or Obscene Photographic Matter Act ('IOPMA') could not satisfy FC s 36, its imprecise
use of the term 'proportionality' as a catch-all for all aspects of FC s 36 analysis leads it to
confuse substantive questions about the means employed by a law and the objectives of a law
with more formal questions about the nature of the law. The definition of obscenity violates the
threshold test for a law of general application not because it impairs more than is absolutely
necessary our expressive rights, or because it imposes greater costs than benefits. It certainly
does both. The definition of obscenity in IOPMA fails the test for law of general application,
because it is a standardless standard that vitiates the commitment to the rule of law.216 That
212 The Cape High Court analyzed the problem in terms of the Bill of Rights. See De Lille v Speaker of the
National Assembly 1998 (3) SA 430 (C), 455, 1998 (7) BCLR 916 (C)(Parliament's conduct impaired the exercise
of the right to freedom of expression in terms of FC ss 58 and 16. Because Parliament's treatment of
parliamentary privilege amounted to conduct not governed by law of general application, it could not be saved by
FC s 36.) The Supreme Court of Appeal preferred to analyze the matter in terms of the common law. But it did
not overrule or contradict the High Court's findings in the matter. See Speaker of the National Assembly v De
Lille & Another 1999 (4) SA 863 (SCA), 1999 (11) BCLR 1339 (SCA)(Court found suspension beyond the scope
of Parliament's authority in the absence of legislation or rules that might permit such punishment.)
213 Act 37 of 1967.
214 Case & Another v Minister of Safety and Security & Others; Curtis v Minister of Safety and Security & Others
1996 (3) SA 617 (CC), 1996 (5) BLCR 609 (CC)('Case & Curtis') at para 61 n98.
215 Ibid at para 61.
216 See, further, Executive Council, Western Cape Legislature, & Others v President of the Republic of South
Africa & Others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC). The Executive Council, Western Cape Court
found that the delegation of authority from Parliament to the President failed to set clear limits on what the
executive could and could not do. Although this case turned on the doctrine of separation of powers, the failure of
the legislature to articulate non-arbitrary guidelines for the exercise of public power is of a piece with the Court's
doctrinal concerns in determining the formal contours of law of general application. See also Janse van
IOPMA's definition of 'obscenity' cannot satisfy the law of general application test means that the
Case & Curtis Court should never have had to engage in proportionality analysis.217
(cc) Precision or clarity
A third, and closely-related, criterion for law of general application is precision. Whereas the
criterion of non-arbitrariness tends to emphasize the potential for poorly-constructed law to result
in the abuse of state power, the criterion of precision or clarity emphasizes the need, in a society
committed to the rule of law, for individuals to be able to regulate themselves. In a society of
autonomous moral agents, and in a state that accords such agents equal dignity and respect,
the rightness of actions must be said to flow from the choices of the citizens themselves to
conform their behaviour to the law, and not from ex post facto assessments of justice as divined
by some leviathan.218
OS 07-06, ch34-p64
In Dawood v Minister of Home Affairs, the Constitutional Court was asked to address the
constitutionality of a legislative provision that provided that an immigration permit could be
granted to the spouse of a South African citizen, who was in South Africa at the time, only if that
spouse was in possession of a valid temporary residence permit.219 The legislation provided no
guidance, however, as to the circumstances in which it would be appropriate to refuse or to issue
a temporary residence permit. Although the Dawood Court stopped short of finding that the
section did not constitute law of general application, it took the opportunity to announce that,
'where broad discretionary powers contain no express constraints', and where 'those who are
affected by the exercise of the broad discretionary powers [can] ... not know what is relevant to
the exercise of those powers', questions about whether the law at issue satisfied the law of
general application requirement would inevitably be raised.220
Dawood reminds us that legislation that grants law enforcement officials unfettered powers
fails the law of general application test on two related grounds.221 As we have already seen, the
unfettered grant of power logically entails arbitrary action: the action is arbitrary in the sense that
neither norms nor precedents govern or restrict the state's behaviour. The flip-side of this
unfettered grant of authority, and more to the point of our analysis of the third criterion, is that it
fails to provide the clarity required for individuals who wish to align their behaviour with an
identifiable legal standard. In Case & Curtis, the Constitutional Court found that the definition of
pornographic material in the Indecent or Obscene Photographic Matter Act was designed to 'hit
everything' and made it impossible for persons engaged in expressive conduct to know, in
Rensburg NO v Minister of Trade and Industry & Another NNO 2001 (1) SA 29 (CC), 2000 (11) BCLR 1235 (CC)
(Where significant powers of discretion are conferred upon a functionary, the legislature must provide guidance
as to the manner in which those powers are to be exercised; the absence of such guidance may render a
statutory provision unconstitutional); Panama Refining Co v Ryan 293 US 388 (1935)(Delegation of authority to
executive declared unconstitutional because Congress had abdicated responsibility for setting clear policy limits
on executive action.)
217 The Constitutional Court's inclination to describe all aspects of limitations analysis as part of its overarching
proportionality assessment does not count as an argument in favour of engaging questions of arbitrariness in
what the text strongly suggests, and what we contend, is a subsequent stage of limitations analysis.
218 See Ferreira v Levin NO 1996 (1) SA 984 (CC), 1996 (4) BCLR 1 (CC)('Ferreira') at para 4 (Ackermann J
wrote: 'Human dignity cannot be fully valued or respected unless individuals are able to develop their humanity,
their "humanness" to the full extent of its potential. Each human being is uniquely talented. Part of the dignity of
every human being is the fact and awareness of this uniqueness. An individual's human dignity cannot be fully
respected or valued unless the individual is permitted to develop his or her unique talents optimally. Human
dignity has little value without freedom; for without freedom personal development and fulfilment are not possible.
Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To
deny people their freedom is to deny them their dignity.') See also Stu Woolman 'Dignity' in S Woolman, T Roux,
J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS,
December 2005) Chapter 36.
219 Dawood & Another v Minister of Home Affairs & Others; Shalabi and Another v Minister of Home Affairs &
Others; Thomas & Another v Minister of Home Affairs & Others 2000 (3) SA 936 (CC), 2000 (8) BCLR 837 (CC)
('Dawood').
220 Ibid at para 47. See also Janse Van Rensburg NO & Another v Minister of Trade and Industry & Another 2001
(1) SA 29 (CC), 2000 (11) BCLR 1235 (CC)(Court holds that the public interest dictates that there should be
certainty about the constitutionality of all legislation.)
221 See, eg, Re Ontario Film and Video Appreciation Society 45 OR (2d) 80 (CA).
advance, what kind of conduct would be proscribed and what kind of conduct would be
permitted.222
Similarly, legislation or common law will fail to satisfy this third criterion where the law is
impermissibly vague.223 In South African National Defence Union v Minister of Defence, the
Constitutional Court held that even a 255-word definition of 'act of
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public protest' was impermissibly imprecise because the definition had the potential to sweep up
into the Act's proscriptive ambit complaints that could never be accurately described as public
protest or partisan political conduct — say, conversations between a member of the military and
her husband.224
As we have noted above, administrative action will generally fail to satisfy this criterion where
law enforcement officials take actions that infringe fundamental rights without possessing clear
legal authority to do so. But while it may be true that such conduct fails to satisfy the second leg
of the law of general application test — because it lacks the requisite features of parity, non-
arbitrariness, precision and accessibility — it is more accurate to say that it lacks the defining
features of law simpliciter.225
(dd) Accessibility or public availability
The final criterion for a law of general application is that the law must be accessible or publicly
available. At a minimum, and perhaps only the minimum is necessary, the law must be
published.
The European Court of Human Rights, in Sunday Times v Handyside, defined 'adequately
accessible' law as follows.226 First, law is adequately accessible if a person is given 'an indication
[of the reach of a legal rule] that is adequate in the circumstances of ... a given case' and that
enables him to 'regulate his conduct' accordingly.227 Second, law is adequately accessible if it
allows a person, 'if need be with appropriate advice, ... to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may entail'.228 In President of the
Republic of South Africa and Another v Hugo, Mokgoro J states that most statutes, regulations
and common-law rules will be treated as law of general
OS 07-06, ch34-p66
application because these forms of law are, generally speaking, 'adequately accessible'.229
222 Case & Curtis (supra) at para 53 ('[T]he challenged provision includes within its reach material that is
constitutionally protected. Ms Fedler, appearing for amici curiae People Opposing Women Abuse et al, conceded
that the provision unjustifiably and unreasonably interferes with protected categories of expression. Counsel for
the Christian Lawyers Association readily acknowledged that there is no place for a provision that outlaws all
depictions of homosexuality and lesbianism. And counsel for the Attorney-General conceded that the Act
amounted to a "loaded shotgun" with which the government that promoted the Act intended to "hit everything".
Indeed, no one before the Court appeared to be willing to defend the statute in its present form.')
223 See R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606, 93 DLR (4th) 36 (Discussing doctrine of
vagueness in Canadian Charter litigation); Connally v General Construction Co 269 US 385 (1926)(Discusses
vagueness doctrine in US constitutional law.)
224 1999 (4) SA 469 (CC), 1999 (6) BCLR 615 (CC)('SANDU') at para 11. 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 criteria by which a person might determine who qualifies as an individual of questionable moral character.
Such a law, while general and public, is far too imprecise, far too vague to place the public on sufficient notice of
what the law expects of them. Such a law would probably violate the overbreadth doctrine in US law on the
grounds that no sharp line could be drawn between protected and proscribed activity and that constitutionally
protected activity would be swept up into its coverage. See Secretary of State of Maryland v Joseph Munson 467
US 947 (1984); Arnett v Kennedy 416 US 134 (1974).
225 For a discussion of administrative or executive action undertaken under colour of law but without legal
authority, see § 34.7 infra. See also S v Mathebula 1997 (1) BCLR 123 (W), 1997 (1) SACR 10 (W).
226 (1979) 2 EHRR 245 ('Sunday Times'). See also Klass v Federal Republic of Germany (1978) 2 EHRR 214;
Hashman and Harrup v The United Kingdom (2000) 30 EHRR 241 at para 43; Kalac v Turkey (1999) 27 EHRR
552 at para 41.
227 Sunday Times v The United Kingdom (No 2) (1992) 14 EHRR 229.
228 Ibid.
Hugo raised, but did not clearly decide, a question about the pedigree of another kind of law:
'whether rules emanating from directives or guidelines, issued by government departments or
agencies but falling outside the category of officially published delegated legislation, are laws of
general application'.230 Mokgoro J, after surveying the split in Canadian jurisprudence on this
very subject, recognized that a certain lack of publicity or accessibility might attach to such
rules.231 She was, however, persuaded that a failure to accord such directives — published, but
perhaps not gazetted — the status of law of general application might have deleterious
consequences for the structure of constitutional analysis. First, as one of the authors of this
chapter has argued elsewhere, the refusal to accord such instances of executive rule-making the
status of law of general application may have the unintended consequence of forcing justificatory
arguments back into the rights interpretation stage of analysis in order to save the law in
question.232 Second, Mokgoro J suggests that, even if such executive rule-making is not made
public or accessible in quite the same way as legislation or common law, the other criteria for
'law of general application' and the other FC s 36 standards developed by the courts for an
assessment of proportionality will ensure that such a rule is unlikely to work the particular
mischief that led to the challenge in the first place. Finally, one should note that there is a signal
difference between the Canadian jurisprudence that has developed around 'prescribed by law' in
s 1 of the Charter, and the Bill of Rights jurisprudence that has developed around 'law of general
application' in FC s 36. South African courts have expressly recognized
OS 07-06, ch34-p67
that all forms of law — legislation, subordinate legislation, regulation, common law and
customary law — can be characterized as law of general application. It goes without saying that
much of this law has not — as some Canadian jurists would require for s 1 analysis of the
Charter — passed through the democratic law-making machinery of the state. In so far as a law
in South Africa possesses the four formal hallmarks of the rule of law that we have described —
parity of treatment, non-arbitrariness, precision and accessibility — it is law of general
application. Although South African courts often tend, in a rather formalistic manner, to
emphasize the provenance of a law, this shorthand — when properly unpacked — reveals a
commitment to these four formal features of the law.233
229 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC)('Hugo'). When surveying the possible desiderata for adequately
accessible law, Mokgoro J suggests that publication satisfies the requirement. She notes that:
Section 2 of the Interpretation Act defines 'law' as 'any law, proclamation, ordinance, Act of Parliament or other
enactment having the force of law', and presumptively applies to the interpretation of every such 'law ... in force'
and of 'all by-laws, rules, regulations or orders made under the authority of any such law'. Delegated legislation
must be published.... When any by-law, regulation, rule or order is authorised by any law to be made by the
President or a Minister ... such by-law, regulation, rule or order shall, subject to the provisions relative to the force
and effect thereof in any law, be published in the Gazette.
Ibid at para 97.
230 Ibid at para 100.
231 See Committee for Commonwealth of Canada v Canada [1991] 1 SCR 139, 77 DLR (4th) 385 (Court divided
as to whether internal airport rules qualified as law for purposes of s 1 review.) For a relevant discussion of this
problem in Canadian jurisprudence, see Stu Woolman & Johan de Waal 'Freedom of Assembly: Voting With Your
Feet' in D van Wyk, J Dugard, B de Villiers & D Davis (eds) Rights and Constitutionalism: The New South African
Legal Order (1994) 292, 308–14. See also Hugo (supra) at para 104 ('I consider it undesirable to take a technical
approach to the interpretation of 'law of general application' ... [A] technical approach unduly reduces the types of
rules and conduct which can justify limitations ... [E]xclusion from section 33(1) may adversely affect the proper
interpretation of the scope of rights in Chapter 3.')
232 See Stu Woolman 'Freedom of Assembly' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M
Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, February 2005) Chapter 43.
233 Mokgoro J reached a similar conclusion in Hugo. See Hugo (supra) at paras 102–103 ('The need for
accessibility, precision and general application flow from the concept of the rule of law. A person should be able
to know the law, and be able to conform his or her conduct to the law. Further, laws should apply generally, rather
than targeting specific individuals. In my view, those rule of law concerns are adequately met by the Presidential
Act. The remaining question about the Presidential Act concerns its origin as executive rule-making rather than
as legislation.... The origin of the Presidential Act in executive rule-making rather than in a formal legislative
process is not fatal to the application of s 33(1).... [T]here are numerous instances of delegated legislation
drafted by the executive, which legislation would undoubtedly be accepted as "law". The difference between the
Presidential Act and standard instances of executive rule-making, in the form of delegated legislation, is the
absence of a parent statute in the former case. In standard cases of executive rule-making, therefore, at least the
parent statute has undergone the rigours of the legislative process. That difference cannot in my view justify
different treatment for the Presidential Act, which represents an exercise of public power derived directly from the
Constitution. The legitimacy which attaches to delegated legislation by reason of the parent statute must attach