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Balancing and the limitation of rights in the South African Constitution 263
intensity of interference, secondly, degrees of importance, and thirdly their
relationship to each other. As principles, constitutional rights would then ...
permit any solution.’ 59
Instead, according to Alexy, balancing as a procedure generates a
predictable outcome ‘not in every case, but in at least some cases, and that
the class of these cases is interesting enough to justify balancing as a
method’. 60
Take, again, Brümmer as an example of a case in which a rational
judgment about intensity of interference and degree of importance are able
to produce a rationally defensible outcome. A three-year time bar on
litigation seems, in obvious ways, a relatively minor interference with the
right of access to court, with a one-month bar being at the other end of the
scale of intensity and a six-month bar somewhere in the middle. Similarly,
a complete prohibition on litigating (an ouster) would be a more severe
infringement than the most parsimonious of time bars. A rough scale of
interferences – light, moderate, severe – can be constructed and rational
assignations can be made on this scale. 61 As to the importance of the
purpose of the limitation, the interests of justice in protecting the civil legal
system from the inconvenience and uncertainty caused by delays in
bringing litigation can plausibly be said to have some weight as a principle,
but to be not particularly weighty. A case, such as Brümmer, where the
reasons for a moderate infringement of P1 is the relatively unweighty P2,
the outcome is predictable and therefore not arbitrary. It is also not
unreflective, in the sense that it is the outcome of reasoned argument,
argument that, though it relies on precedent, does not consider precedent
to be simply dispositive of the case without the need for further
justification.
Brümmer is a relatively simple case. Harder cases may involve greater
possibility of variation in the conclusions drawn at the various stages of
balancing, as is illustrated by the difference of opinion between the UK
courts (and among some of the judges on those courts) and the European
Court on the proper balance between privacy and an effective criminal
justice system. This variability, this open-endedness, does not, however,
mean that the balancing process is irrational: ‘It is not as if we normally
think of other open-ended decision-making approaches as irrational just
because they involve some likelihood of variability.’ 62
Alexy shows that one can go further and reduce the balancing enquiry
to a formula which, though it allows for the exercise of judgment on the
59
Alexy Theory of constitutional rights (n 35 above) 401.
60 Alexy Theory of constitutional rights (n 35 above) 402.
61 Alexy Theory of constitutional rights (n 35 above) 402.
62
F Schauer ‘Balancing, subsumption and the constraining role of the legal text’ (2009)
available at http://ssrn.com/abstract=1403343.