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200 Chapter 7
realised now and those that will be subject to progressive realisation: The only
helpful notion here is the idea of a core set of rights that are particularly
urgent. Even then, the basis upon which such a core is determined will also
need to be considered: It would seem that even here, pragmatic factors may
come into a determination of this core. 85 Without being developed further,
the concept thus seems to have a number of inherent dangers: It is vague
conceptually and could allow for the indefinite deferral of the realisation of
animal rights. It also involves constraining the range of rights applicable to
animals and limiting their application at present in a restrictive manner
without a clear timetable for the expansion thereof.
What may be preferable then is to adopt a more expansive and
structured approach where any violation of a right that is applicable to animals
is recognised as being constitutionally suspect. In order to be constitutionally
permissible, though, such a violation will have to pass the general limitation
enquiry contained in section 36 of the Constitution which requires that
certain criteria must be met for such a limitation to be justifiable. It is to
this approach and its merits that I now turn.
3.2 General limitations
Section 36 (1) of the South African Constitution provides as follows:
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.
This clause outlines the grounds upon which the limitation of a right may be
justified. I now turn to certain features of this clause which may be of
importance in the context of animal rights.
First, a law of general application is required for a right to be capable of
being limited. I have already mentioned that this principle is rooted in the
rule of law and partially gives expression to the grundnorm proscribing
arbitrary treatment of individuals. 86 Section 36(1) itself thus contains a
commitment to these principles.
85 I have made a similar argument concerning the need to bring pragmatic factors into a
86
determination of the core of the right to health care. See Bilchitz (n 39 above) 220 - 225.
See also Woolman (n 23 above) 34-54 - 34-67.