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Does balancing adequately capture the nature of rights? 281
health. The problem, however, lies in Alexy’s conception of rights as
optimisation requirements: for it entails that any measure that limits a right
must strictly speaking be such that there are no alternative measures that
could be capable of realising the purpose of the limitation and be less
intrusive of the right. A sensible measure such as the one the legislature
enacted in this case could easily fail to pass the strict test required by this
element of Alexy’s proportionality analysis. Consequently, it would seem
that his theory can place unreasonable demands on those seeking to justify
the limitation of rights.
Indeed, the problem seems to be capable of being generalised: For, it
appears likely that, in many instances, there will be a range of policy
alternatives that may arguably intrude to a lesser degree upon a right than
the measure adopted by the legislature in any particular case. This will be so
particularly if the notion of possibility in Alexy’s theory is understood to
include all measures that are within the realm of physical possibility. Several
issues arise in this regard. The first difficulty lies in making judgments
concerning the extent of interference of different measures. Even if we
accept Alexy’s point that we can roughly make such judgments, the
second problem lies in the difficulty (if not impossibility in many
instances) of proving that a particular measure is clearly the least intrusive of
the right in question given the range of measures that could be adopted. It
needs to be stressed that the latter requirement is not simply a claim that
the measure in question is one of a range of measures that does not too
severely infringe upon a particular right: it is rather the claim that this
measure is the only one available of a range of alternatives that limits the
infringement of the right to the greatest extent possible. A third problem
flows from the others: In a constitutional review system, it will require
courts to engage in an evaluation of competing alternative policy measures
which could strongly intrude into the domain of the legislature. The very
stringency of the enquiry entailed by Alexy’s theory could thus
systematically breach the respective roles of courts and other branches of
government. This has clearly been a worry evident in the reasoning of the
South African Constitutional Court when engaging with the ‘less restrictive
means’ element of the limitations enquiry. I now turn to discuss the
jurisprudence of the Court in this regard and shall argue that it has
displayed an acute awareness of the problems that could be caused by a
stringent interpretation of the necessity component in the proportionality
enquiry.
2.2 SA Constitutional Court’s approach to ‘necessity’
As has been mentioned, the South African Constitution contains a general
limitation clause which outlines the circumstances under which rights may