Download this publication - PULP

Balancing and the limitation of rights in the South African Constitution 261
in a way that clearly brings out the dimension of weight involved in the
balancing analysis: a short time-bar requires stronger reasons of
practicality and the avoidance of inconvenience to justify it than a
relatively generous time-bar does. So, a thirty-day limit could not be
justified by the relatively minor benefits it accorded to defendants in access
to information cases, while a six-month limit could. This reasoning
follows the model of the Law of Balancing, which goes like this: ‘The
greater the degree of non-satisfaction of, or detriment to, one principle, the
greater must be the importance of satisfying the other.’ 51 This statement
shows that balancing can be broken down into three stages. The first
involves establishing the degree of non-satisfaction of, or detriment to,
Principle 1. The second stage involves assessing the importance of satisfying
the competing principle. The third involves establishing whether the
importance of satisfying the competing principle justifies the detriment to, or
non-satisfaction of the first. 52
5 Objections to the principle theory and to
balancing
According to Alexy, the resolution of conflict between principles requires
balancing. Balancing is therefore an unavoidable practice of constitutional
adjudication. If so, it is a practice that is doomed to incoherence unless
the objections to balancing that were outlined above can be answered. What
follows is a preliminary attempt to meet the case against balancing informed
by Alexy’s conception of balancing that has been outlined above. I will
however, for present purposes, gloss over two of the criticisms made by
Woolman and Botha. One of these is the charge that balancing encourages
conservatism, a charge made rather faintly by the authors who admit that
balancing has also been associated with progressive courts and decisions.
As to the charge that balancing can be associated with a predilection for
one-case-at-a-time incrementalism, and though this is probably true, it does
not seem to me to be a bad thing. 53
Incommensurability. As we have seen, the results of balancing entail,
for purposes of making a decision in a concrete case, a choice to prioritise
one principle over another or even over multiple competing principles: This
is the Law of Competing Principles described above. To be able to make
such a choice the competing principles must be comparable, capable of
being weighed on either side of the same scale. But, and this is the spectre
raised by Woolman and Botha, what if they are not so capable and are in
fact not commensurable? If so, the choice of one over the other is
unjustifiable and should not have been made. But recall Woolman and
51 Alexy Theory of constitutional rights (n 35 above) 102.
52
Alexy Theory of constitutional rights (n 35 above) 401.
53 The practice is defended in I Currie ‘Judicial minimalism’ (1999) 15 SAJHR 138.