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282 Chapter 12
be limited. 55 The clause requires a broad assessment to be made concerning
whether a limitation is reasonable and justifiable within an open and
democratic society based on the values of human dignity, equality and
freedom. It also outlines a range of specific factors the court must engage
when determining the reasonableness of a limitation. These have generally
been regarded as involving the broad components of a proportionality
enquiry. 56 These factors include the requirement that the limitation must be
related to the purpose thereof (Alexy’s suitability requirement); and also a
consideration by courts as to whether there are ‘less restrictive means to achieve
the purpose’ in question. The question arises whether the latter factor involves
Alexy’s ‘necessity principle’. Importantly, the wording of the Constitution
refers to ‘less’ restrictive means rather than the ‘least’ restrictive means: the
latter wording would be more consistent with Alexy’s necessity principle.
Importantly, the way in which the Constitutional Court has applied this factor
also suggests its interpretation thereof is less onerous than that proposed by
Alexy.
A particularly important case in this regard is S v Manamela. 57 The case
concerned the constitutionality of a reverse onus provision that required an
accused person who was in possession of stolen goods to prove that he or she
had reasonable cause at the time of acquiring the goods to believe that they
were not stolen. If the accused failed to discharge the onus, he or she would be
guilty of the offence of receiving stolen property knowing it to be stolen. The
majority found that the provision was in fact unconstitutional: Part of its
reasoning in reaching this conclusion was that the statute could have placed
an evidentiary burden on the accused rather than a full onus and that this
would have been a less restrictive infringement of the rights of the accused. 58
The minority (O’Regan J and Cameron J) disagreed with this position,
finding that the imposition simply of an evidentiary burden would ‘diminish
the obligation upon members of the public to act vigilantly’. 59
Despite the differing conclusions reached, both the majority and minority
agreed on the approach to be adopted towards the less restrictive means
requirement (the disagreement lay in the application of this approach to the
particular case at hand). The minority judgment contains the main discussion in
this regard which commences with the recognition that the ‘less restrictive
55 Sec 36(1) reads as follows: ‘The rights in the Bill of Rights may be limited only in terms of
a law of general application to the extent that the limitation is reasonable and justifiable
in an open and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors including (a) the nature of the right; (b) the
importance of the purpose of the limitation; (c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and (e) less restrictive means to
achieve the purpose.’
56 See S v Makwanyane (n 1 above) para 104.
57
2000 3 SA 1 (CC).
58 This judgment involved considering the right to a fair trial and, in particular, the right to
remain silent and the right to be presumed innocent enshrined in sec 35(3)(h) of the
Constitution.
59 Manamela (n 57 above) para 97.