Download this publication - PULP

268 Chapter 12
that such a violation is justified for purposes of solving crimes and holding
perpetrators to account. If this is so, then it is unclear, as Currie puts it, what the
right to privacy in fact achieves where it ‘can simply be balanced against the
interests of crime detection and prevention and … outweighed by these policy
goals?’ 4
In his paper, Currie goes on to outline the way in which the South
African Constitutional Court has dealt with the limitation of rights in
terms of proportionality and a balancing of interests. He then raises various
criticisms that have been advanced against the notion of balancing by
Botha and Woolman. 5
Surprisingly, these authors have not been challenged until this point.
Currie seeks to use the impressive work of Alexy to mount a defence of
balancing, seeking to demonstrate the way in which Alexy’s theory may
help answer some of the challenges posed by Botha and Woolman. 6
Alexy’s theory is rich and has great explanatory power: It is indeed a
worthwhile project for academics to engage with his oeuvre and draw out
the possibilities that his view holds for South African constitutional law. 7
In this article, I shall consider two objections to Alexy’s theory. The first
challenge involves the argument that his view does not give adequate
expression to the importance of fundamental rights: In other words, the
argument is that his proportionality account of constitutional rights
renders them ‘too weak’. I shall seek to expand on Currie’s analysis here
and largely agree with him that balancing does not necessarily weaken
rights too significantly. However, I shall demonstrate that the objection
does draw our attention to certain dangers attendant upon the balancing
process when it is conducted by courts and highlights a central
incompleteness in the balancing approach.
The second challenge I shall consider involves the argument that
Alexy’s account of rights is ‘too strong’ and, if his approach is construed
strictly, will render the limitation of rights very difficult to achieve. The
discussion in this section will seek to consider the correctness or otherwise
of Alexy’s characterisation of rights as ‘optimisation principles’. The
discussion of both challenges highlights a number of important features that
an adequate account of rights must take into account. In the last section of
this paper, I attempt to use these insights to defend an alternative account
of constitutional rights as being ‘weighted reasons protecting fundamental
interests’. The last section will briefly seek to connect a structural account
4 Currie in Woolman & Bilchitz (n 3 above).
5 Woolman & Botha (n 1 above) 34-95 - 34-101.
6
In particular, Currie uses Alexy’s work on constitutional rights in R Alexy A theory of
constitutional rights (trans Rivers) (2002).
7 Few South African authors have engaged with the work of Alexy: A notable exception
is F du Bois ‘Rights trumped? Balancing in constitutional adjudication’ (2004) Acta
Juridica 155.