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12
David
CHAPTER
DOES BALANCING
ADEQUATELY CAPTURE
THE NATURE OF RIGHTS?
Bilchitz*
Fifteen years into our constitutional democracy, it is accepted as a trite
doctrine of constitutional law that fundamental rights are capable of
limitation. Where the constitutionality of legislative or executive conduct is
impugned, the Bill of Rights is commonly regarded as requiring a two-stage
inquiry: First, has a right been violated in these circumstances? And
secondly, if there has been a violation, can it be justified in terms of section
36(1) of the Constitution, the general limitation clause? 1
Whilst this is now a standard feature of South African constitutional
law, the limitation of rights and the way it is conceived is of great significance
and affects the very meaning of what it is to have a right in the South African
Constitution.
In his paper that defends a balancing approach to the limitation of rights,
Currie gives the example of Marper v United Kingdom which dealt with whether
the police’s keeping of a database of DNA samples of individuals violated
fundamental rights in the European Convention of Human Rights and, in
particular, the right to privacy contained therein. 2 The same issue, he points out,
could soon be before South African courts as parliament is considering a Bill
dealing with the same issue. 3 Given current South African law on the right to
privacy, it is likely that such legislation would be held to violate this right.
Nevertheless, the matter does not end there and there is a strong likelihood,
particularly given the high crime rate in South Africa, that courts might hold
* Associate Professor, University of Johannesburg and Director, South African Institute for
Advanced Constitutional, Public Human Rights and International Law (SAIFAC).
1
This two-stage approach was outlined, eg, in S v Makwanyane 1995 3 SA 391 (CC) para
100. See also S Woolman & H Botha ‘Limitations’ in Woolman et al Constitutional law of
South Africa (2006) (2nd ed) 34-3 - 34-4.
2
S and Marper v United Kingdom (Application nos 30562/04 and 30566/04) (ECtHR
2008-12-04).
3 See I Currie ‘Balancing and the limitation of rights in the South African Constitution’ in
S Woolman & D Bilchitz (eds) Is this seat taken? Conversations at the Bar, the bench and the
academy about the South African Constitution (2012) 251.
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