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254 Chapter 11
factors – inviting consideration of the limited right, the extent of its limitation
and the purpose of the limitation. The section also requires consideration of
whether the limitation will achieve the purpose it is designed to achieve and
whether there are other ways in which the purpose can be achieved without
restricting rights, or by restricting them less severely. Because it is a general
limitation section, all the rights are limitable and all are limitable according to
the same set of justifying criteria.
The structure of rights analysis in a Bill of Rights with a general
limitation section, the Constitutional Court held, in its first encounter with the
current section’s predecessor in S v Makwanyane, ‘involves the weighing up
of competing values, and ultimately an assessment based on proportionality’.
‘Proportionality’, the Court continued, ‘calls for the balancing of different
interests’. 14 It has been saying more or less the same thing ever since. To
use a more recent example, Brümmer v Minister for Social Development, 15 the
court gave the following summary in a nutshell of the limitation enquiry:
In assessing whether the limitation ... is reasonable and justifiable under section
36(1), regard must be had to, among other factors, the nature of the right
limited; the purpose of the limitation, including its importance; the nature and
extent of the limitation; the efficacy of the limitation, that is, the relationship
between the limitation and its purpose; and whether the purpose of the
limitation could reasonably be achieved through other means that are less
restrictive of the right in question. Each of these factors must be weighed up but
ultimately the exercise is one of proportionality which involves the assessment
of competing interests. 16
There are dozens of similar summaries in the case law. That the limitation
enquiry entails, in part, the ‘weighing up’ or ‘balancing’ of competing
considerations can safely be said to be a trite proposition, an article of faith
in South African constitutional law. To be more precise: what is trite and, as
I will elaborate, controversial about this understanding of the limitation
enquiry, is that it countenances a head-to-head conflict between rights and
competing public interests and the possibility that rights will sometimes be
outweighed by those interests. The other part of the limitation analysis,
entailing an enquiry into the relationship between the limitation and the
purpose for it – between means and ends – is, for current purposes at least, a
relatively uncontroversial aspect of the overall proportionality enquiry. To
take the Brümmer decision as a conveniently simple example of this distinction,
the Court’s limitation analysis proceeds as follows:
14 S v Makwanyane 1995 3 SA 391 CC 104 (Chaskalson P).
15
2009 6 SA 323 CC.
16 Brümmer (n 15 above) 59 (Ngcobo J).