The Judical Officer - Dec 07 - Joasa.org.za

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application of the limitation clause in the interim Bill of Rights in the interim
Constitution. This proportionality test has become a standard reference when the
Constitutional Court considers the LEGITIMACY of any limitation in terms of section
36(1) of the 1996 Constitution (Burns 1998:30-31; De Waal et al 1999:151-153). The
latter was recently also confirmed by the Constitutional Court in S S S S v v v v Manamela Manamela Manamela Manamela and and and and
Others Others Others Others 2000 2000 (1) (1) SACR SACR (CC) (CC). (CC)
When section 36(1) of the Constitution is read together with the mentioned
proportionality test in Makwanyane
Makwanyane, Makwanyane
section 36(1) purports the following:
A fundamental right in the Bill of Rights may only be limited in terms of law law of general
application application, application provided that this limitation is reasonable reasonable reasonable and and justifiable justifiable justifiable in in an an open open open and
and
democratic democratic democratic society based on the the three core values of
(1) (1) human human dignity;
dignity;
(2) (2) equality; equality; and
(3) (3) freedom.
freedom.
During consideration of whether this limitation is reasonable and justifiable in an open
and democratic society, competing fundamental rights are being weighed up against one
another. This weighing up requires the application of of a a proportionality proportionality proportionality proportionality test. test test test This
proportionality test requires a balance between
* the harm caused with this limitation; and
* the benefits that this limitation seeks to achieve.
During this proportionality test, the following factors factors are taken into consideration:
(1) the nature of this fundamental right;
(2) the nature and extent of this limitation;
(3) the importance of the purpose of this limitation;
(4) the causal relation between
* this limitation; and