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Balancing and the limitation of rights in the South African Constitution 259
distinction between rules and principles is a basic pillar in the edifice of
constitutional rights theory’. 42 His next step is the characterisation of principles
as ‘optimisation requirements’, ‘norms which require that something be realised
to the greatest extent possible given the legal and factual possibilities’. Unlike
rules, which are definitive commands, norms ‘which are always either fulfilled
or not’, principles can be ‘satisfied to varying degrees’ depending on what is
factually and legally possible in a particular case. 43 A constitutional rule is
therefore something like section 49(1) of the Constitution – ‘The National
Assembly is elected for a term of five years’ – or section 79(5) – ‘If the
Constitutional Court decides that the Bill is constitutional, the President must
assent to it and sign it’ – or section 5 – ‘The national flag of the Republic is
black, gold, green, white, red and blue ...’ The application of rules like these
entails subsumption. If a rule is valid and applicable, it is required to do exactly
what it demands be done. If this is done, the rule is complied with; if this is not
done, the rule is not complied with. 44 A constitutional principle, on the other
hand, is relatively easily identified since the Constitution self-consciously
characterises some of its provisions as such: for example, the ‘Principles of Cooperative
Governance’ listed in section 41, or the ‘Basic Values and Principles
Governing Public Administration’ in section 195. It is also exemplified by any
of the rights in the Bill of Rights, since each right is notionally subject to the
possibility of limitation in terms of the general limitation section. 45 ‘Everyone
has the right to privacy’ seems on the face of it to state a rule, but in fact it does
not since we know that it does not state a categorical prohibition on restrictions
of privacy; privacy can in fact be restricted in the service of countervailing,
constitutionally-recognised considerations such as public safety or the detection
and prosecution of crime or to give effect to competing rights such as freedom
of expression. Constitutional rights therefore have the structure of principles
since they state what ought to be realised to the greatest extent relative to what
is legally and factually possible. The legal possibilities are determined largely
by competing principles, the factual by the facts of the case to be decided.
Conflict between rules can arise and is resolved in one of two ways:
Either an exception is read into one of the rules, or one of the rules is
declared invalid. 46
Competing principles are not resolved this way but instead by
operation of a characteristic of principles that, as Dworkin noticed, is not
possessed by rules – the dimension of weight:
42
R Alexy Theory of constitutional rights (n 35 above) 44. There are no other norms,
according to Alexy, ‘Every norm is either a rule or a principle’ 48.
43 Alexy Theory of constitutional rights (n 35 above) 48 - 49.
44
Subsumption involves the comparison of abstract norms with the concrete facts in a
given case to determine the applicability of the norms. R Alexy ‘On balancing and
subsumption: A structural comparison’ (2003) 16 Ratio Juris 433.
45
‘Notionally’ because the general limitation section is not quite as general as it seems.
See Woolman & Botha (n 24 above) 34.4 on the problem of internal modifiers in the
formulation of some of the rights. There are also, here and there, rules in the Bill of
Rights, eg sec 25(9) ‘Parliament must enact the legislation referred to in subsection (6)’.
46 Alexy Theory of constitutional rights (n 35 above) 49.