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Balancing and the limitation of rights in the South African Constitution 253
prosecuting and preventing crime’. 10 By contrast, the unanimous conclusion
of the European Court was that the balance went the other way. It was
found that ‘the blanket and indiscriminate nature of the powers of retention of
the fingerprints, cellular samples and DNA profiles of persons suspected
but not convicted of offences, as applied in the case of the present
applicants, fails to strike a fair balance between the competing public and
private interests’. 11
Under the South African Constitution, it is certainly an arguable
proposition that retention of DNA data and cellular samples in a forensic
database is constitutionally permissible, despite its infringement of the
right to privacy. The argument in a constitutional challenge is likely to
proceed in much the same way as outlined above. What then does it mean
to say, as section 14 of the Constitution does, that ‘everyone has the right
to privacy’? What exactly is it that this declaration achieves if the right can
simply be balanced against the interests of crime detection and prevention
and, as the decisions of the UK courts illustrate, may be outweighed by these
policy goals? If rights can be weighed against competing public interests
justifying their restriction, and if they are sometimes outweighed by those
interests, then it is not clear what is gained by having a right. This conception
of rights is at odds with a conception of rights as having special strength and
significance, with the idea that, if they are to be taken seriously, rights
should not simply be traded against competing policy goals. 12
2 The ubiquity of balancing
The principle of proportionality which is the hallmark of the jurisprudence
of the European Court of Human Rights and of the UK courts under the
Human Rights Act is also the principle governing the practice of the South
African courts under the 1996 Constitution. In the latter case, this is because
of the presence of the limitation section in the South African Constitution,
which provides that the rights in the Bill of Rights can be limited by law if
there are good reasons for doing so. 13 The limitation section sets out criteria
for determining what constitutes a good reason for limiting rights. These are
the criteria in the part of the general formula beginning with the words ‘the
limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom’ and the first three limitation
10
R (Marper) v Chief Constable of the South Yorkshire Police [2002] EWCA Civ 1275, quoted by
the ECtHR (n 6 above) 13.
11 Marper (ECtHR) (n 6 above) 125.
12
M Kumm ‘Political liberalism and the structure of rights’ in G Pavlakos (ed) Law, rights
and discourse: The legal philosophy of Robert Alexy (2007) 131. According to Kumm, the
general conception of rights in the liberal tradition is that rights may not be overridden
by ordinary considerations of policy. This formulation unites Dworkin’s conception of
rights as ‘trumps’, Rawls’s notion of the priority of the right over the good and
Habermas’s conception of rights as having a deontological character that withdraws
them from participation in a cost-benefit analysis.
13 Sec 36 of the Constitution of the Republic of South Africa, 1996.